Last Updated: November 3, 2016
ARTSY CONDITIONS OF SALE
These Conditions of Sale (“Conditions”) describe the relationship between Art.sy, Inc. d/b/a Artsy (“Artsy” or “we” or “our” or “us”) and the buyers, prospective buyers, bidders, sellers and prospective sellers that use the Artsy website, products, and services (collectively, the “Services”). By using the Services to buy, bid on, inquire about, list, market, offer for sale, or sell any property, you (“you” or “your”) agree to be bound by these Conditions. Please read these Conditions carefully, and feel free to contact us if you have any questions.
1. Basic Conditions
2. Additional Property Terms
Sellers that use the Services are separate businesses from Artsy and may have their own additional terms and conditions that apply to the property they offer for sale. Such terms and conditions may be posted in such property's listing on the Services or otherwise made available on the Services in connection with such property, and you are responsible for reviewing all relevant information available on the Services before buying or bidding on any property. If these Conditions conflict with any seller's terms and conditions posted on the Services, the seller's applicable terms and conditions will apply to the extent of the conflict. However, in no event will any seller's terms and conditions constitute any representation, warranty, or assumption of liability of any kind by us.
The Services may include features that enable you to contact us or the seller regarding property listed on the Services (“Inquiry”). We and the seller will have no obligation to accept or respond to any Inquiry and no liability for any delay or failure to do so.
4. Online Purchases
You may be able to place orders to purchase some property on the Services using the online purchase feature (“Online Purchase”). Where available, the Online Purchase feature will be indicated on the Services with a “Purchase” or "Buy Now" button. Online Purchase orders are binding on the buyer. When you place an order using the Online Purchase feature, you are required to complete the transaction subject to these Conditions. For some property, the Online Purchase feature may be available in addition to competitive auction bidding, in which case the Online Purchase feature will be available until the current bid for such property meets or exceeds the starting bid, or, if such property has a Reserve (see section 8 below), until the current bid for such property meets or exceeds the Reserve. If such property is ordered using the Online Purchase feature, it will be withdrawn from the auction pending completion of the Online Purchase sale.
If you are interested in consigning your property, the Services may include features that provide you with the opportunity to connect with potential sellers who may allow you to consign your property with them. We and/or any potential seller will have no obligation to accept or respond to any such request for an offer of consignment and will have no liability for any delay or failure to do so. Any information provided by us or any potential seller are general guidelines only and may not be relied on by you.
6. Artsy Sales
On rare occasions, Artsy itself may sell property through the Services. If we are the seller of an item, we will expressly identify Artsy as the seller on the Services and when performing a transaction with the buyer, and with respect to that item, we will be considered the seller under these Conditions. In all other cases, whether an auction, Online Purchase or otherwise, we are not the seller and will have none of the seller’s obligations or liability, whether under these Conditions or otherwise.
We and the seller each reserve the right to withdraw any property from the Services at any time, and will have no liability whatsoever for any such withdrawal. With respect to property available for bidding or listed with the Online Purchase feature, this withdrawal right applies before, during and after any auction or Online Purchase sale.
8. Auction Sales
Bidder Registration and Requirements. In order to bid, you will need to create an Artsy account and register as a bidder, providing any required contact and payment information, and completing any required forms. We may require you to provide documentation of your identity, bank or other financial references, and other qualifying information in order to bid at any time. We may also require that you deposit a portion of any bid that you place, in which case, if you are not the winning bidder, your deposit will be refunded to you, and if you are the winning bidder, your deposit may be used to offset the appropriate portion of the purchase price. In any case, we may refuse registration or bidding access to any bidder at any time at our sole discretion, including, without limitation, if we believe such action is necessary to comply with the law or to maintain the integrity or reputation of the Services. You represent and warrant that all information you provide is true and accurate, and that you will not permit any other person or entity to bid using your Artsy account or login credentials.
Automatic Bidding. Our online bidding system is an automatic bidding system. When you place a bid on the Services, you enter the maximum amount that you are willing to pay for the item (your “Maximum Bid”). The amount you enter can be the next minimum bid indicated on the Services or any greater amount. When you enter your Maximum Bid, the system will automatically place a bid for you at the amount of the next minimum bid, according to our automatic bidding increments. As the auction continues, the system will continue to bid automatically for you by increments, up to your Maximum Bid, only as much as necessary to maintain your position as the highest bidder. We may modify, add or remove bidding increments at our sole discretion at any time before, during or after any auction.
Bidder’s Responsibility. Each bidder that places a bid is required to complete the transaction if they place the winning bid (or their bid is otherwise accepted), as a bid is a legally binding commitment to purchase the item if you are the winning bidder. When you place a bid on any item, you are accepting personal liability for the purchase price, any applicable taxes, any and all shipping and packing costs, and all other applicable charges. You also represent and warrant that any bids placed by you or on your behalf are not the result of any collusive or other anti-compettive agreement and are otherwise consistent with federal and state antitrust law.
Our Discretion. We reserve the right, at our absolute discretion, to: (i) reject or revoke your registration or permission to bid at any time before, during or after any auction; (ii) reject, revoke or refuse to accept any bid at any time before, during or after any auction (even bids that have been previously confirmed, whether on the Services, by email, text message or otherwise); (iii) determine bidding increments and otherwise advance bidding on the Services at any time in any manner we may decide; and (iv) restart or continue bidding during or after any auction conducted on the Services.
All Bids are Final. Please note that all bids are final once submitted and may not be cancelled or modified by you, except with our express written consent under circumstances that we consider appropriate at our sole discretion. Potential examples include if a bidder accidentally enters the wrong bid amount on the Services (e.g. $10,000 instead of $1,000), if there is a material change to an item’s listing on the Services after a bid is placed, or if an item is withdrawn from an auction. You must contact us immediately after placing the bid at issue in order to request to cancel or modify any bid placed in error.
Reserves. Some items in an auction may be offered for sale subject to a reserve price (“Reserve”), as indicated on the Services, which is the confidential minimum price below which the item will not be sold. An item’s Reserve will not exceed its low pre-sale estimate, if applicable. When you bid on an item with a Reserve, if your Maximum Bid meets or exceeds the Reserve, the system will automatically increase your bid to meet the Reserve, according to our automatic bidding increments. We may implement the Reserve for any item by opening bidding on behalf of the seller, and may continue to bid on behalf of the seller up to the amount of the Reserve, by placing consecutive or successive bids or bids in response to other bidders.
Buyer’s Premium. Some items in an auction may be offered for sale subject to a buyer’s premium, as indicated on the Services, which is an additional charge the buyer is required to pay, calculated as a percentage of the item’s final hammer price. If an item is subject to a buyer’s premium, this will be indicated on the Services, along with the rate of the buyer's premium, and the winning bidder will be required to pay the buyer’s premium, plus any applicable taxes, in addition to the final hammer price.
Countdown Clock and Closing. We may display a countdown clock on the Services in connection with some auctions. This is provided for general informational use only and does not constitute any warranty as to the closing time of any item. If you are interested in an item, you should refer to its individual listing on the Services to see if bidding has closed and should not rely on the countdown clock. If a bid is placed on an item during the last five minutes before its original closing time, we will have the right at our sole discretion, but no obligation, to extend bidding for such item for an additional five minutes after the original closing time, and may continue to extend bidding for such item until five minutes pass without any bids being placed. The extension of one item’s closing time will not affect the closing time of any other item. You may need to refresh or reload the bidding page on the Services to see if bidding for an item has closed.
Offline Auctions. Some property available for bidding on the Services may be offered for sale in an auction conducted offline (“Offline Auction”) by a party other than us ("Offline Auctioneer"). In such cases, we may collect bids on such property through the Services before the Offline Auction, and may transfer those bids to the Offline Auctioneer to execute against other bidders in the Offline Auction. Bidding for such property on the Services will close the day before the Offline Auction or at such other time as indicated on the Services. The Offline Auctioneer may have different bidding increments than us, and you agree that (as applicable) your Maximum Bid may be executed in the Offline Auction according to the Offline Auctioneer’s bidding increments without further notice to you, up to the amount of your Maximum Bid. In any case, the Offline Auctioneer reserves the right to reject any bid at any time at its absolute discretion, and we and the Offline Auctioneer will have no liability whatsoever for any such rejection. After the Offline Auction, the Offline Auctioneer will contact winning bidders directly to collect payment, arrange for delivery or pickup of purchased property, and conduct any other applicable post-sale activities, and we will have no responsibility to such bidders in these regards unless we expressly indicate otherwise. For example, we may sometimes accept payment from winning bidders on behalf of the Offline Auctioneer, in which case we will notify such bidders directly that we are doing so.
Absentee Bidding. We may offer absentee bidding Services in connection with some auctions, whereby we may collect bids via telephone, email and/or written forms (“Absentee Bidding Services”). All bids placed via Absentee Bidding Services are subject to our discretion and (with respect to Offline Auctions) the discretion of the Offline Auctioneer, as stated above in these Conditions. We offer Absentee Bidding Services for convenience only and do not guarantee or represent that they will be available at any time. We may refuse Absentee Bidding Services to any person at any time (even during an auction) at our sole discretion, and we will have no liability for any failure or refusal to provide Absentee Bidding Services under any circumstances. Bidders are responsible for their own expenses in connection with Absentee Bidding Services, including but not limited to any computer and telephone equipment and network provider costs, as applicable.
Live Auction Integration (“LAI”). As part of the Services, and with respect to certain auctions, we may provide users of the Services the ability to access and bid online in a live auction undertaken by a third-party. All bids placed through the Services are subject to these Conditions, wherever the Services are accessed. Furthermore, any bids made in any applicable auctions with LAI functionality placed through LAI are subject to this section and any applicable conditions of sale identified by the live auction third-party; regarding the placing of bids using LAI, if there is any inconsistency between the terms in this section and other section of the Conditions, this section shall prevail.
LAI bidding activity may be recorded. We may provide a deadline for you to register for LAI prior to an applicable auction, and your registration may be subject to the review, vetting and approval of us or the live auction third-party. You acknowledge that your registration for the applicable auction is not guaranteed, and you may not be permitted to participate in the auction in the sole and absolute discretion of us or the live auction third-party.
LAI is provided as an alternative bidding service and should not be considered a replacement for bidding in the live auction room. You are responsible for making yourself aware of all sale room notices and announcements for such live auction, and are advised to examine any lot in which you are interested, whether in person or by requesting information (if available) through the individual lot listing pages on the Services. If you click on the “Bid” button and your bid is successfully sent, your bid will be reviewed and, if accepted by us, will be submitted on your behalf to the auctioneer (the “Auctioneer”); provided, however, that the acceptance of any and all such bids are subject to the discretion of the Auctioneer. Once accepted by the Auctioneer, your bid will be valid and binding until the sale of the lot closes. You may enter a Maximum Bid, and the system will bid automatically by increments up to your Maximum Bid, only as much as necessary to maintain your position as highest bidder. Bidding increments, including any possible Maximum Bid, will match the increments set by the live auction third-party.
During a live auction with LAI, bids other than internet bids will be displayed on your computer screen as "floor" bids. "Floor" bids include, without limitation, those bids taken from the live auction room, telephones, bids from other online platforms, or bids made by the Auctioneer to protect the Reserve. In the event of a tie between an online bid and a "floor" bid, the "floor" bid generally will take precedence, subject to the Auctioneer’s sole and absolute discretion, provided, however, that the LAI clerk reserves the right to make amendments to correct any “floor” bids that are mistakenly represented on your computer screen, and in such cases, your bid, once accepted by the Auctioneer, may become the highest bidder and winning bid. LAI bids submitted and accepted are final and, under no circumstances, will you be permitted to amend or retract your bid, and if you are the highest bidder for the lot, you accept liability to pay the Total Purchase Price. Once you have bid, the next available bidding increment will be shown for your convenience on your computer screen. The available bidding increment may not reflect the bid that is subsequently taken off the floor, as the Auctioneer may deviate from the automatic bidding increments at any time, at their discretion. While the Auctioneer may vary increments at their discretion, you will not be able to place a bid in an amount other than a whole bidding increment.
The record of sale, kept by the Auctioneer, will be taken as absolute and final in all disputes. In the event of a discrepancy between any online records or messages provided to you and the record of sale kept by the Auctioneer, the record of sale will govern. After the auction, the live auction third-party will contact winning bidders directly to collect payment, arrange for delivery or pickup of purchased property, and conduct any other applicable post-sale activities, and we will have no responsibility to you in these regards unless we expressly indicate otherwise.
WE DO NOT WARRANT THAT THE SERVICES, INCLUDING LAI, WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT BIDS WILL BE RECEIVED BY THE AUCTIONEER OR INFORMATION REGARDING CURRENT PRICE WILL BE TRANSMITTED IN A TIMELY FASHION. WE WILL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE OF ANY THIRD PARTY TO ACCESS THE SERVICES OR BID IN THE AUCTION USING LAI. WE ALSO DO NOT GUARANTEE THE PERFORMANCE OF ANY THIRD PARTY’S OBLIGATIONS IN CONNECTION WITH SUCH AUCTION.
Bidding at Live Events. We may make the Services (including Absentee Bidding Services) available at events affiliated with other organizations. All bids placed through the Services are subject to these Conditions, whether the Services are accessed at a live event or any other location.
Bidding Information and Seller Communications. If you use the Services to bid in any auction, you agree that we may provide the seller with your name, email address and other contact information, and bidding information, and the seller may contact you about your participation in that auction and (if the seller is an organization) otherwise regarding their organization.
Bidding Record. Our own internal records related to bidding through the Services will be final and binding in all disputes. In the event of any inconsistency between our own internal records and any information provided to any bidder (whether on the Services, by email, text message, orally or otherwise), our own internal records will control.
9. After Sale
Total Purchase Price and Payment Deadline. Subject to these Conditions, upon the confirmation of any Online Purchase, and upon the conclusion of any auction sale, the sale contract between the buyer and the seller is concluded, and the buyer must pay the Total Purchase Price no later than 5:00 PM ET on the seventh (7th) day after the sale (“Payment Deadline”). The “Total Purchase Price” includes: (i) the purchase price of the item; (ii) any sales tax, use tax, VAT and/or any other taxes or levies that the seller or we are required to collect from the buyer under applicable law; and (iii) (for items sold in an auction) any applicable buyer’s premium.
Passage of Title and Risk of Loss. We do not transfer and are not responsible for transferring legal ownership of property from the seller to the buyer. The New York Uniform Commercial Code will apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise. The seller represents that: (i) the seller is the sole owner of each item the seller offers for sale through the Services, or else the seller is duly authorized by the owner of such item to sell it; and (ii) subject to these Conditions, the seller is able to transfer good and marketable title to such item to the buyer free from any claims of third parties. Risk of loss to each item will pass to the buyer when legal title to such item passes to the buyer.
Payment Processing. We may accept payment from the buyer on behalf of the seller in connection with some sales, in which case we will notify the buyer that we are doing so by email and/or by providing the buyer with an option to check out on the Services. In all other cases, the buyer will pay the seller directly. Different sellers may accept different payment methods and/or have additional terms and conditions that apply to payments made to them, and the buyer will be subject to those terms and conditions as applicable. We may accept payments from buyers by credit card, check or wire transfer at our sole discretion, and have no obligation to accept payment by other means. We accept American Express, Visa, MasterCard or Discover only. We may place limits on any credit card purchase and/or use third-party payment processors to process any transaction at our sole discretion. If any credit card payment is not approved, the buyer will remain personally liable for all amounts otherwise due. The buyer agrees to notify us directly in writing of any claims or issues regarding any payment made to us by credit card or any other means. All payments to us must be made in U.S. dollars unless we expressly agree otherwise in writing. The buyer is responsible for any currency costs incurred to make all payments to us in U.S. dollars regardless of the buyer’s home currency or payment method. If we or the seller incur any bank fees receiving any payment from the buyer by wire transfer, the buyer will be responsible for those costs and agrees that (as applicable) we or the seller may charge those costs to the buyer. The buyer consents to us paying commissions out of amounts received from the buyer to third parties referring us clients or otherwise assisting us in connection with the sale of property.
Taxes. Unless exempt by law, the buyer is required to pay all sales and use taxes, VAT, export and/or import taxes and duties, and any other transactional taxes or levies related to the purchase of property by the buyer. The buyer is required to pay the seller any taxes as the seller is required to collect, but the failure of the seller to collect any taxes from the buyer will not relieve the buyer’s obligation to pay them. Buyers claiming exemption from any tax are responsible for providing proper documentation. Any delay in obtaining or failure to obtain any relevant documentation or a refund of any tax will not justify the cancellation of any sale or any delay in paying the Total Purchase Price by the Payment Deadline. Unless expressly otherwise indicated, all prices listed on the Services are exclusive of taxes, and applicable taxes may be collected from the buyer in addition to any listed price.
Shipping and Handling. The buyer is required to pay all shipping, packing, and transit insurance fees and costs for purchased property. We may, but are not obligated to, provide support in the shipping process, such as facilitating communication or payment between buyers and shippers, or recommending third-party service providers. However, any such support or recommendations are for convenience only and do not constitute or imply any representation, warranty, or assumption of liability of any kind by us. We are not the agent of any buyer, seller or third party in connection with the shipping, packing or handling of any property. We do not control and are not liable or responsible for the acts, omissions or policies of the seller or any third party in connection with the shipping, packing or handling of any property, whether or not recommended by us. Unless we specifically agree otherwise in writing with respect to certain property, we have no responsibility for the delivery of any purchased property.
Resale. The buyer must not re-offer any purchased property for sale until the buyer has paid for the property in full and has otherwise assumed legal ownership and physical possession of the property subject to these Conditions.
Remedies for Non-Payment. If the buyer for any reason cancels any payment made by credit card or otherwise fails to pay the Total Purchase Price with respect to any property by the Payment Deadline, the buyer will be in default ("Buyer Default") and will be liable for payment of such Total Purchase Price and any other applicable charges. In the event of Buyer Default in connection with any property, without limiting any other rights or remedies available to us or the seller (whether at law, in equity, or under these Conditions), subject to the New York Uniform Commercial Code, the seller may cancel the sale of such property to the defaulting buyer and resell such property publicly or privately on terms the seller thinks fit, and the defaulting buyer will be liable for payment of any deficiency between the resale price obtained by the seller and the purchase price originally owed by the defaulting buyer. In any case, the defaulting buyer will be liable to us and the seller for any and all costs, expenses (including reasonable attorneys’ fees), and damages of whatever kind incurred in connection with such Buyer Default, the collection of any amounts due from the defaulting buyer, and/or (if applicable) the resale of the property at issue. In addition, if the buyer for any reason fails to pay the Total Purchase Price with respect to any property by the Payment Deadline, the buyer irrevocably authorizes us, at our option, to charge the buyer for any outstanding portion of such Total Purchase Price using any credit card information the buyer has provided on the Services, whether or not the buyer provided such credit card information in connection with the sale at issue.
10. Export and Import Licenses and Other Restrictions
Prospective buyers are advised that: (i) some countries may prohibit or require a license or permit in order to export or import some property, including but not limited to property containing material from endangered or other protected plant or animal species; (ii) cross-border deliveries are subject to opening and inspection by customs authorities; (iii) the laws of some countries may prohibit the resale of some property once it is imported into those countries; and (iv) some countries may reserve the right to purchase some property exported from those countries (sometimes called a “right of preemption”). None of Artsy and our officers, owners, directors, consultants, agents, and employees (collectively, the “Artsy Parties”) or the seller makes any representations or warranties as to whether any property is or is not subject to any such laws or restrictions. It is solely the buyer’s responsibility to determine and obtain at its own cost any necessary export and/or import licenses and other required permits for purchased property. Unless the buyer and the seller agree otherwise, a delay in obtaining or failure to obtain any required license or permit will not justify the cancellation of any sale or any delay in paying the Total Purchase Price with respect to any property. None of the Artsy Parties or the seller will be liable for any damage or loss resulting directly or indirectly from any confiscation of purchased property, transportation restriction, or other action taken by any government or public authority.
11. Staff Participation
Artsy staff may use the Services as bidders and/or buyers in their personal capacity (i.e. not as our employees, agents or representatives) as long as they do not have any confidential information about the item they are bidding on and/or buying (for example, the Reserve of an item offered for sale in an auction). Likewise, if the seller in an auction is an organization, its staff may bid in that auction in their personal capacity, as long as they do not have any confidential information about the item they are bidding on. In all such cases, the staff member is personally subject to these Conditions like any other bidder and/or buyer.
12. Availability and Pricing
We cannot guarantee that any property appearing on the Services will be available to sell or listed with the correct price, including but not limited to items listed with the Online Purchase feature. We reserve the right to cancel any Online Purchase order at any time if we are notified by the seller or otherwise determine at our sole discretion that the item ordered is not available to sell for any reason or was listed with an incorrect price, even after the buyer receives an order confirmation (whether on the Services, by email or otherwise). If your Online Purchase order is cancelled under such circumstances, we will notify you by email of such cancellation and you will be refunded for any amounts that you have already paid for the applicable item and its delivery to you (if any), and the Artsy Parties and the seller will otherwise have no liability whatsoever for any such cancellations or listing errors. You acknowledge and agree that all property appearing on the Services is subject to availability.
13. “AS IS”
EXCEPT FOR THE AUTHORSHIP WARRANTY PROVIDED BY THE SELLER IN SECTION 14 BELOW, ALL PROPERTY SOLD IN AN AUCTION OR VIA ONLINE PURCHASE IS SOLD “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, AND NONE OF THE ARTSY PARTIES OR THE SELLER MAKES ANY REPRESENTATIONS OR WARRANTIES, OR ASSUMES ANY LIABILITY OF ANY KIND, WITH REGARD TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, SIZE, QUALITY, CONDITION, ATTRIBUTION, AUTHENTICITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITION HISTORY, LITERATURE OR HISTORICAL RELEVANCE OF ANY SUCH PROPERTY, AND NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE ON THE SERVICES, IN A BILL OF SALE, AN ADVERTISEMENT, ANY OTHER SUPPLEMENTAL MATERIALS OR ELSEWHERE, WILL BE DEEMED SUCH A REPRESENTATION, WARRANTY, OR ASSUMPTION OF LIABILITY. THE ARTSY PARTIES AND THE SELLER MAKE NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE BUYER WILL ACQUIRE ANY REPRODUCTION RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN ANY PROPERTY SOLD, OR WHETHER ANY ARTWORK SOLD IS SUBJECT TO ANY ARTIST’S MORAL RIGHTS OR RESIDUAL RIGHTS. WITH RESPECT TO PROPERTY AVAILABLE FOR BIDDING, ANY ESTIMATE OF THE SELLING PRICE IS NOT TO BE RELIED ON AS A STATEMENT THAT THIS IS THE PRICE AT WHICH THE ITEM WILL SELL OR ITS VALUE FOR ANY OTHER PURPOSE. THE ARTSY PARTIES AND, EXCEPT AS STATED IN SECTION 14 BELOW, THE SELLER, WILL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS ON THE SERVICES OR IN ANY SUPPLEMENTAL MATERIALS. EXCEPT AS STATED IN SECTION 14 BELOW, ALL PROPERTY SOLD IN AN AUCTION OR VIA ONLINE ONLINE PURCHASE IS FINAL SALE AND IS NOT RETURNABLE.
14. Authorship Warranty
Authorship Warranty. The seller warrants to the buyer for a period of five (5) years from the sale date that if the property sold by the seller in an auction or via Online Purchase is described as of the sale date in the property listing on the Services in Bold or UPPER CASE type to be the work of a named authorship without qualification, then the property is authentic and is not a forgery (“Authorship Warranty”). This Authorship Warranty is subject to the following terms and conditions: (i) it does not apply to property whose description of authorship on the Services as of the sale date corresponded with the generally accepted opinion of scholars or experts or indicated that there was a conflict of opinions; (ii) it does not apply to property whose authorship as described on the Services as of the sale date is proved inaccurate by means of a scientific process not generally accepted for use until after the sale date or a process which as of the sale date was unreasonably expensive or impractical or likely to have caused damage to the property; (iii) the benefits of the Authorship Warranty are not transferable and apply only to the original buyer of record, and not to their successors or assigns or any other party; and (iv) “authorship” means only the creator of the property, or the period, culture, source or origin of the property, as the case may be, as described in the property listing on the Services in Bold or UPPER CASE type as of the sale date.
Cancellation and Refund. The seller agrees to cancel the sale and refund the purchase price of the property to the buyer subject to the following terms and conditions: (i) the buyer must notify the seller in writing within sixty (60) days after the buyer first receives any information leading to the belief that the Authorship Warranty has been breached, in any case within five (5) years after the original sale date, and must provide such information to the seller; (ii) the buyer must have remained the owner of the property without disposing of any interest in it to any third party; and (iii) the buyer must return the property to the seller in the same condition it was in as of the original sale date. The seller reserves the right, as a condition to cancelling any sale under the Authorship Warranty, to require that the buyer obtain, at the buyer’s expense, the written opinions of two (2) independent and recognized experts in the field mutually acceptable to the buyer and the seller. The seller will not be bound by any expert opinions produced by the buyer and reserves the right to obtain additional expert opinions at the seller’s own expense. The activities described in this paragraph will be conducted solely by the buyer and the seller. We will have no responsibility to the buyer or the seller in these regards.
Exclusive Remedy. The buyer acknowledges and agrees that cancellation of the sale and refund of the purchase price subject to the above terms and conditions will be the buyer’s sole and exclusive remedy for any breach of the Authorship Warranty, in place of any other remedy or recourse that might otherwise be available at law or in equity. None of the Artsy Parties or the seller will be liable to the buyer for any special, incidental or consequential damages arising out of or in connection with any breach of the Authorship Warranty, including, without limitation, loss of profits or interest.
No Warranty by Artsy. Except with respect to property sold by Artsy itself, we make no representations or warranties of any kind (express or implied) with regard to any property and will not be responsible for the Authorship Warranty provided by the seller.
15. Dispute Resolution
As we are not the agent of any buyer, prospective buyer, bidder or seller for any purpose, the Artsy Parties have no duty to resolve, and will not act as the agent of any buyer, prospective buyer, bidder or seller in connection with resolving, any disputes. However, we reserve the right, but are not obligated, to investigate complaints or claims of buyers, prospective buyers, bidders or sellers, and you agree to cooperate with us in any such investigations that we may choose to conduct, as permitted by applicable law.
16. General Release
THE ARTSY PARTIES DO NOT ENDORSE OR CONTROL AND ARE NOT RESPONSIBLE FOR THE CONDUCT, PERFORMANCE OR NON-PERFORMANCE (WHETHER ONLINE OR OFFLINE) OF ANY BUYERS, PROSPECTIVE BUYERS, BIDDERS OR SELLERS IN ANY WAY CONNECTED WITH THE SERVICES OR ANY PROPERTY LISTED, MARKETED, OFFERED OR SOLD THROUGH THE SERVICES. IF YOU HAVE A DISPUTE WITH ONE OR MORE BUYERS, PROSPECTIVE BUYERS, BIDDERS OR SELLERS IN ANY WAY CONNECTED WITH THE SERVICES OR ANY PROPERTY LISTED, MARKETED, OFFERED OR SOLD THROUGH THE SERVICES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE THE ARTSY PARTIES FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. YOU EXPRESSLY WAIVE ANY BENEFITS OR PROTECTIONS, WHETHER STATUTORY OR OTHERWISE, THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF ENTERING INTO THIS RELEASE.
17. Disclaimer of Warranties
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ANY WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, AND ANY WARRANTIES THAT ANY BUYERS, PROSPECTIVE BUYERS, BIDDERS OR SELLERS WILL COMPLETE ANY TRANSACTIONS OR OTHERWISE PERFORM AS PROMISED, ALL OF WHICH THE ARTSY PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ANY OF THE ARTSY PARTIES BE LIABLE OR RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN CONNECTION WITH THE EXECUTION OF ANY BIDS (WHETHER ONLINE, OFFLINE, ON THE SERVICES, IN AN EMAIL, OR OTHERWISE), OR FOR ANY INABILITY OR FAILURE TO ACCESS THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY FAILURES RESULTING DIRECTLY OR INDIRECTLY FROM ANY LOSS OF INTERNET OR TELEPHONE CONNECTION OR FROM ANY BREAKDOWNS OR MALFUNCTIONS OF THE SERVICES OR ANY COMPUTER, DEVICE OR SYSTEM DIRECTLY OR INDIRECTLY AFFECTING THE AVAILABILITY OR OPERATION OF THE SERVICES.
18. Limitation of Liability
IN NO EVENT WILL ANY OF THE ARTSY PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE, ANTICIPATED SAVINGS, BUSINESS, GOODWILL OR OTHER INTANGIBLE LOSSES, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (i) THESE CONDITIONS; (ii) THE SERVICES; (iii) THE USE OF OR INABILITY TO USE THE SERVICES; OR (iv) ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. In no event will any of the Artsy Parties have any liability whatsoever with respect to the listing, marketing, offer or sale of any property through the Services, except that our liability to the seller may vary as otherwise stated in a separate written agreement between us and the seller, and with respect to property sold by Artsy itself, our liability to the buyer will be limited to the remedy expressly provided in section 14 of these Conditions under the Authorship Warranty. The exclusions and limitations of liability provided in this section apply to all claims, whether based on warranty, contract, statute, tort (including negligence), strict liability, or any other legal theory, whether or not any of the Artsy Parties have been advised of or should have known of the possibility of such damage or loss, and even if a remedy set forth in these Conditions is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the exclusions and limitations provided in this section may not apply to you, in which case the liability of the Artsy Parties will be limited to the fullest extent permitted by applicable law.
19. EU Cancellation Rights
Pursuant to the European Union (“EU”) Directive on Consumer Rights (2011/83/EC), a buyer in the EU (an “EU Buyer”) who purchases a lot in a timed/online-only auction has a right to cancel such sale contract within fourteen (14) days after they or a person they authorize (other than the carrier) take physical possession of such lot, for any reason and without incurring liability for doing so. An EU Buyer that exercises this cancellation right must return the lot, and the seller will refund the EU Buyer for payments already made for the purchase and applicable shipping of the lot. To exercise this cancellation right, the EU Bidder must inform the seller through a clear statement (i.e., a letter sent by post or e-mail) or may use this model cancellation form. This cancellation right is not applicable to EU Bidders who participate in live/public auctions using the Services.
20. Choice of Law and Venue
These Conditions, and the rights and obligations of the parties under these Conditions, will be governed by and construed in accordance with the laws of the State of New York and, to the extent applicable, the laws of the United States, excluding any conflict of laws principles. You agree that any claims or disputes arising out of or related to these Conditions, the Services, or the listing, marketing, offer or sale of property through the Services, must be resolved exclusively by a state or federal court located in New York County, New York, United States. You and we each agree to submit to the personal jurisdiction of, and agree that venue is proper in, the courts located in New York County, New York, United States, for the purpose of resolving all such claims or disputes, and you waive any objection as to inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods will not in any way apply to these Conditions, the Services, or the listing, marketing, offer or sale of property through the Services.
21. Changes to these Conditions
We reserve the right to change, modify, add or remove any part of these Conditions at any time at our sole discretion. All changes to these Conditions will be effective immediately when posted on the Services, and you agree to review these Conditions carefully and inform yourself of all applicable changes before buying or bidding on any property. Changes to these Conditions will not apply to any transaction, claim or dispute that arose before the changes became effective, all of which will remain subject to the version of these Conditions in effect at the time that such transaction, claim or dispute arose. Please save and/or print a copy of these Conditions for your records.
These Conditions, together with any other applicable terms and conditions made available on the Services, and (as applicable) any written terms and conditions made available by us or the seller at a live event where the Services are used for bidding, constitutes all of the terms and conditions on which you may purchase, bid on, or inquire about property through the Services. If any provision of these Conditions is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, that provision will be enforced to the maximum extent permissible, and these Conditions will otherwise remain in full force and effect. No delay or failure by us to exercise or enforce any right or provision of these Conditions will be deemed a waiver of that or any other right or provision. We will not be deemed to have waived any right or remedy under these Conditions unless the waiver is in writing and signed by an Artsy representative who intends and is duly authorized to agree to such waiver on our behalf. No single or partial exercise by us of any right or remedy under these Conditions will prevent any further exercise by us of any other right or remedy. These Conditions will inure to the benefit of, and are intended to be enforceable by, the parties and their respective successors and assigns, but you may not assign these Conditions or any right or obligation under these Conditions without our prior written consent. There are no third-party beneficiaries to these Conditions except as expressly stated in these Conditions. You and we are independent contractors under these Conditions. Nothing stated in or implied from these Conditions will create any agency, partnership, joint venture, employment, sales representative, or franchise relationship between you and us. These Conditions were written in English (U.S.). To the extent any translated version of these Conditions conflicts with the English version, the English version controls. The paragraph and section titles in these Conditions are for convenience only and have no legal or contractual effect.
23. Contacting Artsy
If you have any questions about these Conditions, please email us at: email@example.com. Artsy is located at: 401 Broadway, 25th Floor, New York, New York 10013, U.S.