Important Information
.
Terms & Conditions
BUYER’S AGREEMENT
With Fine Art Bourse Limited Following a Sale.
IMPORTANT: The terms below, along with all Conditions of Sale may be varied by a notice placed prominently on our Website, or displayed on any Sale Page, or by our amendment of any of the constituent components of the Conditions of Sale. In the event of the latter we will endeavour to notify you of the same should it be likely to affect you. You should be alert to this possibility of changes and ask in advance of bidding if there have been any.
1. THE CONTRACT /
1.1 These terms govern the contract between Fine Art Bourse Limited personally and the Buyer, being the person to whom a Lot has been knocked down.
1.2 The Definitions and Glossary contained in the Conditions of Business are incorporated into this agreement and a separate copy can also be provided by us on request. Where words and phrases which are defined in the List of Definitions are used in this agreement, they are printed in italics.
1.3 Reference is made in this agreement to information printed in the Notice to Bidders, printed on our Sale Page or Catalogue or elsewhere prominently on our Website, and where such information is referred to it is incorporated into this agreement.
1.4 Except as specified in section 6 of the Notice to Bidders the Contract for Sale of the Lot between you and the Seller is made on the Lot being knocked down to you and at that moment a separate contract is also made between you and Fine Art Bourse Limited on the terms in this Buyer’s Agreement.
1.5 We act as agents for the Seller and are not answerable or personally responsible to you for any breach of contract or other default by the Seller, unless Fine Art Bourse Limited sells the Lot as principal.
1.6 Our personal obligations to you are governed by this agreement and we agree, subject to the terms below, to the following obligations;
1.6.1 we will, until the date and time specified in the Notice to Bidders or otherwise notified to you, store the Lot in accordance with paragraph 5;
1.6.2 subject to any power of the Seller or us to refuse to release the Lot to you, we will release the Lot to you in accordance with paragraphs 4 and 5 below, once you have paid to us, in cleared funds, everything due to us and the Seller;
1.6.3 we will provide a Guarantee in the terms set out in paragraphs 8 and 9 below. This Guarantee is made in addition to the representation we make as agent of the Seller which you are entitled to claim reliance on with respect of the capitalised wording of the Contractual Description and Condition Report.
1.7 We do not make or give and do not agree to make or give any contractual promise, undertaking, obligation, guarantee, warranty, representation of fact in relation to any Description of the Lot or any Estimate in relation to it, nor of the accuracy or completeness of any Description or Estimate which may have been made by us or on our behalf or by or on behalf of the Seller (whether made orally or in writing, including on our Sale Page or Catalogue or elsewhere prominently on our Website, or by conduct, or otherwise), and whether made before or after this agreement or prior to or during the Sale.
No such Description or Estimate is incorporated into this agreement between you and us. Any such Description or Estimate, if made by us or on our behalf, was (unless Fine Art Bourse Limited itself sells the Lot as principal) made as agent on behalf of the Seller
2. PERFORMANCE OF THE CONTRACT FOR SALE /
2.1 You undertake to us personally that you will observe and comply with all your obligations and undertakings to the Seller under the Contract for Sale in respect of the Lot.
3. PAYMENT /
3.1 Unless agreed in writing between you and us or as otherwise set out in the Notice to Bidders, you must pay to us by not later than 4.30pm on the second working day following the Sale:3.1.1 the Purchase Price for the Lot; 3.1.2 a Buyer’s Premium and Buyer’s Offer Fee in accordance with the rates set out in the Notice to Bidders, and
3.2 You must also pay us on demand any Expenses payable pursuant to this agreement or any other agreement as part of the Conditions of Sale.
3.3 All payments to us must be made in the currency in which the Sale was conducted, using, unless otherwise agreed by us in writing, one of the methods of payment set out in the Notice to Bidders. Our invoices will only be addressed to the registered Bidder Australia fineartbourse.com unless the Bidder is acting as an agent for a named principal and we have approved that arrangement in advance, in which case we will address the invoice to the principal.
3.4 All payments made with respect to a Lot or any payment due to us will be payable directly to our Escrow Agent and into the Escrow Account. A reference to a payment to ‘us’ or similar, is a reference to a payment into the third party Escrow Account
3.5 Unless otherwise stated in this agreement all sums payable to us will be subject to the Tax at the appropriate rate and such Tax will be payable by you on all such sums. FINE ART BOURSE LIMITED RESERVES THE RIGHT TO SEEK ANY TAX, EXPRESSLY INCLUDING ANY VALUE ADDED TAX payable by us or you, on occasion of a Sale for a period of three years following any Sale.
3.6 We may deduct and retain for our own benefit from the monies paid by you to us the Buyer’s Premium, Buyer’s Offer Fee the Commission payable by the Seller in respect of the Lot, any Expenses and Tax and any interest earned or incurred until payment to the Seller. You agree to our issuing of instructions to the Escrow Agent in order to give effect to the above.
3.7 Time will be of the essence in relation to any payment payable to us. If you do not pay the Purchase Price, or any other sum due to us in accordance with this paragraph 3, we will have the rights set out in paragraph 7 below. 3.8 Where a number of Lots have been knocked down to you, any monies we receive from you will be applied firstly pro-rata to pay the Purchase Price of each Lot and secondly pro-rata to pay all amounts due to Fine Art Bourse Limited.
4. COLLECTION AND DELIVERY OF THE LOT /
4.1 Subject to any power of the Seller or us to refuse to release the Lot to you, once you have paid to us, in cleared funds, everything due to the Seller and to us, we will release the Lot to you or as you may direct us in writing. The Lot will only be released on confirmation of cleared funds being received and accepted by our Escrow Agent.
4.2 Following release of the Lot, and on your provision of delivery details we will store and ship the Lot to you at no further cost within 14 days providing you have paid to our Escrow Agent all funds owing when or before they fall due.
4.3 We are entitled to rely on any delivery details you provided to us at the time of your registration on our Website. If you have not, for any reason, provided delivery details to us prior to the Sale of the Lot to you, we will require these within 24 hours of the Sale occurring.
4.4 You authorise us, acting as your agent and on your behalf, to enter into a contract (the “Storage Contract”) with the Storage Contractor for the storage of the Lot on the then current standard terms and conditions agreed between Fine Art Bourse Limited and the Storage Contractor (copies of which are available on request). If the Lot is stored at our premises storage fees at our current daily rates (currently a minimum of US$10 plus Tax per Lot per day) will be payable from the expiry of the period referred to in paragraph 4.2. or if you have not paid to our Escrow Agent all funds owing when or before they fall due these storage fees form part of our Expenses.
4.5 Until you have paid the Purchase Price and any Expenses in full the Lot will either be held by us as agent on behalf of the Seller or held by the Storage Contractor as agent on behalf of the Seller and ourselves on the terms contained in the Storage Contract.
4.6 You undertake to comply with the terms of any Storage Contract and in particular to pay the charges due under any Storage Contract. You acknowledge and agree that you will not be able to collect the Lot from the Storage Contractor’s premises, nor will we deliver the Lot to you until you have paid the Purchase Price, any Expenses and all charges due under the Storage Contract.
4.7 You will be wholly responsible for any removal, storage, or other charges for any Lot not removed, stored or delivered in accordance with paragraph 4.1-4.6, payable at our current rates, and any Expenses we incur (including any charges due under the Storage Contract), all of which must be paid by you on demand and in any event before any collection of the Lot by you or on your behalf.
5. STORING THE LOT /
5.1. We agree to store the Lot until the earlier of your removal of the Lot or until the time and date set out in the Notice to Bidders (or if no date is specified, by 4.30pm on the fourteenth day after the Sale) and, subject to paragraphs 6 and 10, to be responsible as bailee to you for damage to or the loss or destruction of the Lot (notwithstanding that it is not your property before payment of the Purchase Price). If you do not collect the Lot before the time and date set out in the Notice to Bidders (or if no date is specified, by 4.30pm on the fourteenth day after the Sale) we may remove the Lot to another location, the details of which will usually be set out in the Notice to Bidders.
If you have not paid for the Lot in accordance with paragraphs 3 and 4, and the Lot is moved to any third party’s premises, the Lot will be held by such third party strictly to Fine Art Bourse Limited’s order and we will retain our lien over the Lot until we have been paid in full in accordance with paragraph 3.
5.2 For the avoidance of doubt, In the event that any sums remain outstanding from you after they have fallen due, or after 14 days from the date of the Sale in the instance that you have not provided us with a serviceable delivery address you will be liable for all storage costs from this point onward. IF YOU DO NOT PAY FOR THE LOT IN ACCORDANCE WITH THE ABOVE, AFTER A PERIOD OF THREE MONTHS FROM A NOTICE ISSUED FROM US OUTLINING OUR INTENTIONS FINE ART BOURSE LIMITED WILL EXERCISE ITS RIGHT TO REALISE THE VALUE OF THE LOT THROUGH RESALE/ REALISATION OF OUR Australia fineartbourse.com LIEN – YOU EXPRESSLY WAIVE ANY RIGHT TO SPECIFIC PERFORMANCE OF THE CONTRACT FOR SALE OR DELIVERY.
6. RESPONSIBILITY FOR THE LOT /
6.1 Title to the Lot passes to you on the occasion of the Lot being knocked down to you subject to you paying the Purchase Price.
6.2 Risk in the Lot remains with Fine Art Bourse Limited until such time as the Lot is out of our physical possession either through your collection of the lot or our delivery of the lot to you, or as directed by you. 6.2 Notwithstanding the above, you are advised to obtain insurance in respect of the Lot as soon as possible after the Sale.
7. FAILURE TO PAY OR TO REMOVE THE LOT AND PART PAYMENTS /
7.1 If all sums payable to us are not so paid in full at the time they are due or if the Lot is not capable of being delivered in accordance with this agreement, we will, without further notice to you, be entitled to exercise one or more of the following rights (without prejudice to any rights we may exercise on behalf of the Seller):
7.1.1 to terminate this agreement immediately for your breach of contract;
7.1.2 to retain possession of the Lot;
7.1.3 to remove, and store the Lot at your expense;
7.1.4 to take legal proceedings against you for payment of any sums payable to us by you (including the Purchase Price) and damages for breach of contract;
7.1.5 to be paid interest on any monies due to us (after as well as before any judgement or order) at the annual rate of 5% per annum above the base lending rate of Hong Kong and Shanghai Banking Corporation Limited from time to time to be calculated on a daily basis from the date upon which such monies become payable until the date of actual payment;
7.1.6 to repossess the Lot (or any part thereof) which has not become your property, and for this purpose you hereby grant an irrevocable licence to us, by ourselves, our servants or agents, to enter upon all or any of your premises (with or without vehicles) during normal business hours to take possession of any Lot or part thereof;
7.1.7 to sell the Lot Without Reserve by Auction, Private Treaty or any other means on giving you three months written notice of our intention to do so;
7.1.8 to retain possession of any of your other property in our possession for any purpose (including, without limitation, other goods sold to you or with us for Sale) until all sums due to us have been paid in full;
7.1.9 to apply any monies received from you for any purpose whether at the time of your default or at any time there after in payment or part payment of any sums due to us by you under this agreement;
7.1.10 on three months written notice to sell, Without Reserve, any of your other property in our possession or under our control for any purpose (including other goods sold to you or with us for Sale) and to apply any monies due to you as a result of such Sale in payment or part payment of any amounts owed to us;
7.1.11 refuse to allow you to register for a future Sale or to reject a bid from you at any future Sale or to require you to pay a deposit before any bid is accepted by us at any future Sale in which case we will be entitled to apply such deposit in payment or part payment, as the case may be, of the Purchase Price of any Lot of which you are the Buyer.
7.2 You agree to indemnify us against all legal and other costs, all losses and all other Expenses (whether or not court proceedings have been issued) incurred by us as a result of our taking steps under this paragraph 7 on a full indemnity basis together with interest thereon (after as well as before judgement or order) at the rate specified in paragraph 7.1.5 from the date upon which we become liable to pay the same until payment by you.
7.3 If you pay us only part of the sums due to us such payment shall be applied firstly to the Purchase Price of the Lot (or where you have purchased more than one Lot prorata towards the Purchase Price of each Lot) and secondly to the Buyer’s Premium (or where you have purchased more than one Lot pro-rata to the Buyer’s Premium on each Lot) and thirdly to any other sums due to us.
7.4 We will account to you in respect of any balance we hold remaining from any monies received by us in respect of any Sale of the Lot under our rights under this paragraph 7 after the payment of all sums due to us and the Seller within 28 days of receipt by us of all such sums paid to us.
8. CLAIMS BY OTHER PERSONS IN RESPECT OF THE LOT /
8.1 Whenever it becomes apparent to us that the Lot is the subject of a claim by someone other than you and other than the Seller (or that such a claim can reasonably be expected to be made), we may, at our absolute discretion, deal with the Lot in any manner which appears to us to recognise the legitimate interests of ourselves and the other parties involved and lawfully to protect our position and our legitimate interests. Without prejudice to the generality of the discretion and by way of example, we may;
8.1.1 retain the Lot to investigate any question raised or reasonably expected by us to be raised in relation to the Lot;
8.1.2 deliver the Lot to a person other than you;
8.1.3 commence interpleader proceedings or seek any other order of any court, mediator, arbitrator or government body;
8.1.4 require an indemnity and security from you in return for pursuing a course of action agreed to by you. 8.2 The discretion referred to in paragraph 8.1— 8.2.1 may be exercised at any time during which we have actual or constructive possession of the Lot, or at any time after such possession, where the cessation of such possession has occurred by reason of any decision, order or ruling of any court, mediator, arbitrator or government body; and 8.2.2 will not be exercised unless we believe that there exists a serious prospect of a good arguable case in favour of the claim.
8.3 In the event that you are not covered as a bona fide purchaser for value without notice in respect of another party’s interest in the Lot, we – subject to our recovery of the same from the Seller – undertake to repay to you an amount equal to the sum of the Purchase Price, Buyer’s Premium, Tax and Expenses paid by you in respect of the Lot.
8.3.1 While any interlocutory proceedings or investigations by us are occurring or reasonably contemplated in respect of the Lot, we may elect to pay such sums as identified in 8.3 above into a trust or escrow account of our choosing solely in the interests of the parties.
9. FORGERIES /
9.1 We undertake a personal responsibility for any Forgery in accordance with the terms of this paragraph 9.
9.2 Paragraph 9 applies only if;
9.2.1 your name appears as the named person to whom the original invoice was made out by us in respect of the Lot and that invoice has been paid; and
9.2.2 you notify us in writing as soon as reasonably practicable after you have become aware that the Lot is or may be a Forgery, and in any event within one year after the Sale, that the Lot is a Forgery; and
9.2.3 within one month after such notification has been given, you return the Lot to us in the same condition as it was at the time of the Sale, accompanied by written evidence that the Lot is a Forgery and details of the Sale and Lot number sufficient to identify the Lot.
9.3 Paragraph 9 will not apply in respect of a Forgery if;
9.3.1 the Entry in relation to the Lot contained on our Sale Page or Catalogue or elsewhere prominently on our Website reflected the then accepted general opinion of scholars and experts or fairly indicated that there was a conflict of such opinion or reflected the then current opinion of an expert acknowledged to be a leading expert in the relevant field; or
9.3.2 it can be established that the Lot is a Forgery only by means of a process not generally accepted for use until after the date on which the Lot was entered into the Catalogue, or by means of a process which it was unreasonable in all the circumstances for us to have employed.
9.4 You authorise us to carry out such processes and tests on the Lot as we in our absolute discretion consider necessary to satisfy ourselves that the Lot is or is not a Forgery.
9.5 If we are satisfied that a Lot is a Forgery we will (as principal) purchase the Lot from you and you will transfer the title to the Lot in question to us, with full title Guarantee, free from any liens, charges, encumbrances and adverse claims, in accordance with the provisions of Sections 14(1)(a) and 14(1)(b) of the Sale of Goods Ordinance (Chapter 26 of the Laws of Hong Kong) and we will pay to you an amount equal to the sum of the Purchase Price, Buyer’s Premium, Tax and Expenses paid by you in respect of the Lot.
9.6 The benefit of paragraph 9 is personal to, and incapable of assignment by, you.
9.7 If you sell or otherwise dispose of your interest in the Lot, all rights and benefits under this paragraph will cease.
9.8 Paragraph 9 does not apply to a Lot made up of or including a Chinese painting or Chinese paintings, a Stamp or Stamps or a Book or Books.
10. OUR LIABILITY /
10.1 We accept limited liability for the Condition Report and Contractual Description made by us on behalf of the Seller and further detailed in the Conditions of and Notice to Bidders.
10.2 Save for the above, we will not be liable whether in negligence, other tort, breach of contract or statutory duty or in restitution or under the Misrepresentation Ordinance (Chapter 284 of the Laws of Hong Kong) or in any other way for lack of conformity with or any inaccuracy, error, misdescription or omission in any Description of the Lot or any Entry or Estimate in respect of it, made by us or on our behalf or by or on behalf of the Seller (in the Catalogue on the Website, orally or by conduct or otherwise) and whether made before or after this agreement or prior to or during the Sale.
10.3 Our duty to you while the Lot is at your risk or is your property and in our custody or control is to exercise reasonable care in relation to it, but we will not be responsible for damage to the Lot or to other persons or things caused by;
10.3.1 handling the Lot if it was affected at the time of Sale to you by woodworm and any damage is caused as a result of it being affected by woodworm; or
10.3.2 does not change in atmospheric pressure; nor will we be liable for
10.3.3 damage to gilded picture frames, plaster picture frames or picture frame glass; and if the Lot is or becomes dangerous, we may dispose of it without notice to you in advance in any manner we think fi t and we will be under no liability to you for doing so.
10.4 We will not be liable to you for any loss of business, business profits, revenue or income or for loss of business reputation or for disruption to business or wasted time on the part of the Buyer’s management or staff or, if you are buying the Lot in the course of a business, for any indirect losses or consequential damages of any kind, irrespective in any case of the nature, volume or source of the loss or damage alleged to be suffered, and irrespective of whether the said loss or damage is caused by or claimed in respect of any negligence, other tort, breach of contract, statutory duty, bailee’s duty, a restitutionary claim or otherwise.
10.5 In any circumstances where we are liable to you in respect of a Lot, or any act, omission, statement, representation in respect of it, or this agreement or its performance, and whether damages, for an indemnity or contribution or for a restitutionary remedy or in any way whatsoever, our liability will be limited to payment of a sum which will not exceed by way of maximum the amount of the Purchase Price of the Lot plus Buyer’s Premium (less any sum you may be entitled to recover from the Seller) irrespective in any case of the nature, volume or source of any loss or damage alleged to be suffered or sum claimed as due, and irrespective of whether the liability arises from negligence, other tort, breach of contract, statutory duty, bailee’s duty, a restitutionary claim or otherwise. You may wish to protect yourself against loss by obtaining insurance.
10.6 Nothing set out above will be construed as excluding or restricting (whether directly or indirectly) any person’s liability or excluding restricting any person’s rights or remedies in respect of (i) fraud, or (ii) death or personal injury caused by our negligence (or any person under our control or for whom we are legally responsible), or (iii) acts or omissions for which we are liable under the Occupiers Liability Ordinance (Chapter 314 of the Laws of Hong Kong) , or (iv) any other liability to the extent the same may not be excluded or restricted as a matter of law, or (v) under our undertaking in paragraph 9 of these conditions.
11. MISCELLANEOUS /
11.1 You may not assign either the benefit or burden of this agreement.
11.2 Our failure or delay in enforcing or exercising any power or right under this agreement will not operate or be deemed to operate as a waiver of our rights under it except to the extent of any express waiver given to you in writing. Any such waiver will not affect our ability subsequently to enforce any right arising under this agreement, although in doing so we shall not act retrospectively to enforce a right which at the time of nonenforcement was impotent through operation of express waiver in writing.
11.3 If either party to this agreement is prevented from performing that party’s respective obligations under this agreement by circumstances beyond its reasonable control or if performance of its obligations would by reason of such circumstances give rise to a significantly increased financial cost to it, that party will not, for so long as such circumstances prevail, be required to perform such obligations. This paragraph does not apply to the obligations imposed on you by paragraph 3.
11.4 Any notice or other communication to be given under this agreement must be in writing and may be delivered by hand or sent by registered post or air mail or email (if to Fine Art Bourse Limited, and unless otherwise stipulated, marked for the attention of the Directors), to the postal address or email of the relevant party given in the Contract Form (unless notice of any change of address is given in writing). It is the responsibility of the sender of the notice or communication to ensure that it is received in a legible form within any applicable time period.
11.5 If any term or any part of any term of this agreement is held to be unenforceable or invalid, such unenforceability or invalidity will not affect the enforceability and validity of the remaining terms or the remainder of the relevant term.
11.6 References in this agreement to Fine Art Bourse Limited will, where appropriate, include reference to Fine Art Bourse Limited’s officers, employees and agents and, and where applicable, subsidiaries.
11.7 The headings used in this agreement are for convenience only and will not affect its interpretation.
11.8 In this agreement “including” means “including, without limitation”.
11.9 References to the singular will include reference to the plural (and vice versa) and reference to any one gender will include reference to the other genders.
11.10 Save where otherwise indicated or apparent, reference to a numbered paragraph is to a paragraph of this agreement.
11.11 Save as expressly provided in paragraph 11.12 nothing in this agreement confers (or purports to confer) on any person who is not a party to this agreement any benefit conferred by, or the right to enforce any term of, this agreement. The Contract (Rights Against Third Parties) Ordinance, Cap 623 is expressly excluded from this and all other agreements between us and you.
11.12 Where this agreement confers an immunity from – or an exclusion or restriction of – the responsibility or liability of Fine Art Bourse Limited, it will also operate in favour and for the benefit of Fine Art Bourse Limited’s holding company and the subsidiaries of such holding company and the successors and assigns of Fine Art Bourse Limited and of such companies and of any officer, employee and agent of Fine Art Bourse Limited and such companies, each of whom will be entitled to avail itself of the same relevant right at law.
12. GOVERNING LAW /
12.1 All transactions to which this agreement applies and all connected matters will be governed by and construed in accordance with the laws of Hong Kong where every Sale takes place. Fine Art Bourse Limited has an internal dispute resolution procedure in place which is available on request.
12.1.2 In any event, Before we or you start any court proceedings (except in the limited circumstances where the dispute, controversy or claim is related to proceedings brought by someone else and this dispute could be joined to those proceedings), we agree we will each try to settle the dispute by mediation following the Centre for effective Dispute Resolution (CEDR) Model Mediation Procedure. We will use a mediator affiliated with CEDR who we and you agree to. If the dispute is not settled by mediation, you agree for our benefit that the dispute will be referred to and dealt with exclusively in the courts of Hong Kong; however, we will have the right to bring proceedings against you in any other court.
13. LANGUAGE /
13.1 The Buyer’s Agreement is made both in the English language and in other languages from time to time. Each document, notice, waiver, variation and written communication whether in hard copy or electronic form made or delivered by one party to another pursuant to the Buyer’s Agreement shall be in the English language or accompanied by a translation thereof into English certified (by an officer of the person making or delivering the same) as being a true and accurate translation thereof. The English language version of the Buyer’s Agreement and any document, notice, waiver, variation and written communication relating to the Buyer’s Agreement will prevail over any translation and any version in any other language.
14. DATA PROTECTION - USE OF YOUR INFORMATION /
14.1 Where we obtain any personal information about you, we shall only use it in accordance with the terms of our Privacy Policy (subject to any additional specific consent(s) you may have given at the time your information was disclosed).
A copy of our Privacy Policy can be found on our Website fineartbourse.com or requested by email from FAB@FINEARTBOURSE.COM
You have the right to request us not to use your information for these purposes by contacting Fine Art Bourse Limited (which for the purpose of the Personal Data (Privacy) Ordinance (Chapter 486 of the Laws of Hong Kong) is the data user) by email at FAB@FINEARTBOURSE.COM