This Artsy Curated Auction Seller's Agreement ("Agreement") between you (the “seller” or “you” or “your”) and Art.sy, Inc. d/b/a Artsy (“Artsy” or “we” or “our” or “us”) provides the basic terms and conditions on which you list, market, offer or sell artwork and other property (each, an “Item”) in an Artsy Curated Auction through the Artsy website, products, and services, including any Artsy mobile application (collectively, the “Services”). By entering into a Listing Schedule or otherwise accepting this Agreement, you agree to be bound by all terms and conditions of this Agreement. In the event of any conflict between the Listing Schedule and this Agreement, the Listing Schedule will govern.
This Agreement was last updated on April 28, 2021
1. Basic Terms and Conditions
1.1 Eligibility. You represent and warrant that: (i) you are able to form a legally binding contract with us; (ii) you have all necessary rights and authority to enter into this Agreement and perform your obligations under this Agreement; (iii) none of your acts or performance in connection with this Agreement and no part of this Agreement will conflict with any obligation that you have to any third party, whether contractual or otherwise; and (iv) you are not located in a country embargoed by the United States and you are not on any United States government list of prohibited or restricted parties.
2. Listing and Sale
2.1 Methods of Sale. Your Item/s may be offered for sale using the Services via Buy Now/Make Offer and/or auction (“Online Sale”) as set forth in the Listing Schedule. The inclusion of your Items in Buy Now/Make Offer and/or auction shall be in Artsy’s sole discretion. All decisions made by Artsy concerning which lots will be included in any Online Sale shall be final. We shall also have the right to offer and sell your Item/s in a private sale, at our sole discretion, provided that the Net Proceeds payable to you are not less than the Reserve Price or Listing Price, whichever is lower. Your obligations to us with respect to the private sale of the property are the same as if the Item had been sold using the Services.
You agree that we have the exclusive right to list or offer your Item/s on or through Artsy from the date listed in the Listing Schedule until the earlier of i) a successfully completed sale, or ii) sixty (60) days after the last unsuccessful offer for sale on or through the Services ("Exclusivity Period").
We, acting in our sole discretion, will select which of the Services to use in the marketing and offering of your Item/s for sale; provided, however, that we may elect to consult with you about how your Item/s are marketed and offered for sale using the Services.
As part of our Services to you and Buyers, we will process payment in connection with all Online Sales as provided in section 3 below. However, you agree that we will not be your agent for any purpose, and we will not be the agent of any buyer or other User for any purpose. Whether or not we accept any payment from any buyer and/or remit any funds to you in connection with any sale, in no event will we be the purchaser of any Item; all Items are offered for sale and sold directly from you to the buyer. For each Item, you agree to provide us with the location from which the Item ships, and we may post this information on the Services and otherwise make it available to Users.
We make no representations or warranties as to the anticipated selling price of any Item, that any Item will sell, or that any buyer will complete any transaction or otherwise perform as promised.
Although you are the seller, all Items will be listed and marketed without designation, except that we may list and market your Item using metadata such as whether you are a private or professional seller, and the city and/or state, and country where you are located. If we have agreed in writing to a particular designation, then you authorize us to use such designation in connection with the listing, marketing, offer and sale of any and all Items by you on and in connection with the Services, both before and after the sale. Once the buyer has paid Artsy the Total Purchase Price (as defined in Section 3.2 below) for any Item, you authorize us to disclose your name to the buyer of that Item. You agree to keep any personally identifiable information of the buyer strictly confidential, and to use the buyer’s personal information for purposes of the sale only (as outlined in Section 7 below).
You shall not withdraw any Item from sale after the date you sign the Listing Schedule without our prior written consent. In the case of any withdrawal of property by you, you shall promptly pay us in addition to any other sums due hereunder, liquidated damages (it being agreed that our actual damages are impracticable or extremely difficult to ascertain and that such amount is a reasonable estimate thereof) equal to twenty percent (20%) of the low estimate or listing price, as applicable, of the withdrawn lot then entered on our books, plus any out-of-pocket expenses incurred by us.
2.2 Listing Requirements. For the duration of the Exclusivity Period: (i) you will not offer or sell any Item listed in the Listing Schedule by other means or permit any third party to offer or sell such Item without Artsy’s prior written consent; and (ii) you will not list or exhibit any respective Item on any website or mobile application other than the Site without Artsy’s prior written consent.
You are solely responsible for accurately describing each Item on the Services and for all images, information and other material that you submit to Artsy in connection with the Services. Artsy reserves the right in its sole discretion to revise, edit, and modify your listing description as well as to unpublish a listing.
You also agree to provide metadata/cataloguing or descriptions about the applicable Item (the “Item Descriptions”) as may be requested by Artsy and to provide such Item Descriptions to Artsy no later than seven (7) business days before the start of the applicable Online Sale, and such Item Descriptions will be included in Listing Schedule. If you are unable to produce the Item Descriptions, at Artsy’s request, you agree to provide Artsy relevant information and Artsy may produce the Item Descriptions at a cost to be mutually agreed between the parties; however, in no case will Artsy have the obligation to produce such Item Descriptions. You are solely responsible for inspecting each applicable lot. You agree that you will carefully review each Item Description (or relevant information, as applicable) before providing it to Artsy, and that each Item Description (or relevant information, as applicable) you provide will be true and accurate. It is understood that Artsy may exclude or withdraw any lot from any particular Online Sale if you have not provided Artsy with an Item Description (or relevant information, as applicable) for such lot as required by this Agreement.
Prospective bidders and winning bidders may request an additional condition report on a lot before bidding on or buying the lot. Such additional condition reports will be paid for by the buyer. You agree to use reasonable endeavors to provide, in a timely fashion, a condition report upon request or to give access to the lot to the representative commissioned by the bidder or buyer to prepare a condition report.
You agree that you will immediately notify Artsy in writing if you become aware of any event or information that may cause any applicable lot description (or portion thereof, or relevant information, as applicable) to be inaccurate or misleading; and that Artsy may notify bidders and prospective bidders in any Online Sale of such event or information.
**2.4 Estimates and Reserves. Estimates are set forth in the Listing Schedule. We will set the estimates for lots to be sold on our site, in our sole discretion. Neither you, nor anyone else, may rely upon any estimate as a prediction or guarantee of the actual selling price of the lot. If applicable, each lot will be offered subject to a reserve when listed in an auction, as set forth in the Listing Schedule, unless otherwise agreed with you. The starting bid for a lot will not exceed the low auction estimate and may be equal to the reserve.
2.3 Online Bidding. Bidding will be conducted and will be available on the site using Artsy’s automatic bidding system, subject to the Conditions of Sale. You may not bid on any Item by itself or arrange for any other person to do so on your behalf, except that, in order to implement the reserve for any lot, Artsy will have the right (but not the obligation) to bid on such lot on the Site on your behalf, up to (but not including) the amount of such reserve.
2.4 Commission. We will be entitled to receive, and you agree to pay us, a commission on the final sale or bid price on each Item sold via the Services (each, an “Online Purchase”). Our commission rate is listed in the Listing Schedule. Each commission due to us under this Agreement will be calculated by applying this commission rate to the purchase price or hammer price of the Item sold (excluding any taxes or other charges).
You acknowledge and agree that we may charge the buyer and retain for our account a buyer’s premium on any Item sold using the Services. You have no right or claim over the buyer’s premium.
2.5 Our Reservation of Rights. We reserve the right, at any time at our sole discretion, to: (i) determine the contents, appearance, design, functionality, and all other aspects of any and all of the Services (including the right to redesign, modify, add, remove or discontinue the contents, appearance, design, functionality, and all other aspects of the Services, in whole or part); (ii) delay or suspend listing of, de-list, or refuse to list, any or all Items on the Services; (iii) deactivate, refuse or revoke use of any features on the Services, including, without limitation, the Online Purchase feature for any or all Items; (iv) reject, disallow or refuse to process any Online Purchase orders placed (or attempted) by any Users (including, without limitation, if we believe such action is necessary as a security measure); and/or (iv) remove or refuse to display any images, information or other material on the Services (including, without limitation, if we believe such material may violate this Agreement, the law or any third-party rights). We will not be liable to you for exercising our rights reserved in this section.
3. Payment Services
3.1 Setup. We may require that you provide business, contact, financial, tax, payment information, or supporting documentation of same before you are allowed to list, market, offer or sell any Items through the Services, and before we will accept payment from buyers or remit funds to you by electronic transfer. We may also require that you provide further financial, business or personal information at any time to verify your identity. You authorize us to verify your information (including any updated information you provide) and to obtain credit reports about you in order to approve you for use of our transaction-related Services.
3.2 Collection. Upon the confirmation of each Online Purchase, we will collect the “Total Purchase Price” from the buyer, which includes: (i) the purchase price of the Item sold; (ii) a buyer’s premium, as applicable; (iii) any Seller Taxes that we may agree to collect in connection with such sale upon your request (subject to section 3.7 below); (iv) any other taxes that we may be required to collect; and (v) any other applicable charges, such as shipping charges, authorized by the buyer related to such sale. We may use Payment Processors selected at our sole discretion to process any payment.
3.3 Payment Processor. We may use third-party payment processors (“Payment Processor”) to process transactions from buyers. We will not be liable or responsible for any loss of or inability to do business or other damage or loss of any kind resulting directly or indirectly from: (i) any inability to register with or use any services of any Payment Processor; (ii) any policy, act or omission of any Payment Processor; or (iii) any failure to accept any payment by credit card or other means or remit funds to you by electronic transfer in connection with any transaction. We will not be liable to you if we permit any buyer to cancel any Online Purchase because any Payment Processor’s services become unavailable after the buyer initiates the transaction.
3.4 Non-Payment by Buyer. Any statement in this Agreement or elsewhere (whether written, oral or implied) notwithstanding, we have no obligation to enforce any payment from any buyer or to take any legal action or other action against any buyer that fails to make any payment under any circumstances. In no event will we be liable for any loss of profits, revenue or anticipated savings, or any special, incidental or consequential damages arising out of any non-payment of buyer.
3.5 Account Settlement. Provided we receive payment of the Total Purchase Price in good cleared funds from the buyer with respect to the sale of any Item by you using the Services, within one week following confirmed delivery to the buyer, we will initiate a payment to you for the "Net Proceeds" of that sale, defined as the purchase price of such Item less our Commission, buyer’s premium, and any other amount that you owe us, whether arising out of that sale or otherwise. If we receive any Seller Taxes with respect to any sale in connection with your use of tax collection tools made available by us (as described in section 3.7 below), we will remit such Seller Taxes to you along with the Net Proceeds of that sale. Payment of Net Proceeds and any applicable Seller Taxes shall be by electronic funds transfer to a bank account identified by you in the Listing Schedule.
3.6 Currency. We will make all payments to you in US Dollars unless we expressly agree otherwise in writing.
3.7 Seller Taxes. You agree that it is your responsibility to maintain all required records and remit to the proper tax authority any Seller Taxes that may apply to the sale of each Item and that we are not obligated to determine whether any Seller Taxes apply and are not obligated to collect, report or remit any Seller Taxes arising out of any transaction. You are solely responsible for documenting and paying all applicable Seller Taxes to the correct taxing authority as required by applicable law. For purposes of this Agreement, "Seller Taxes" means any and all sales, use, goods and services, value added, consumption, excise, import, export, and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any listing, marketing, offer or sale of property by you on or through the Services, or otherwise in connection with any act or omission by you or any of your affiliates, agents, employees or representatives. You are required to provide us with your VAT registration number if you determine you are required to collect VAT. Any statement in this Agreement or elsewhere (whether written, oral or implied) notwithstanding, we reserve the right to collect, report and remit any taxes and duties to any taxing authority in connection with any transaction, at any time and without liability to you or any third party, if we believe in our sole discretion that such action is required by applicable law. You agree that no statement made by us or any of our representatives, whether orally, in writing, on the Services or elsewhere, constitutes or may be relied on by you as tax advice. Notwithstanding any of the foregoing, for transactions that settle within the state your Item is located, we will collect and remit that state’s sales tax to you.
You agree to indemnify Artsy for Seller Taxes or other transaction taxes, interests and penalties, that are related to the sale or use of artwork sold through Artsy’s platform, the provision of services by Artsy to you, any related delivery charges, or other charges related to or arising from this Agreement, and that Artsy pays to a taxing authority. You agree to reimburse Artsy within 15 days of Artsy providing information demonstrating payment of any such amounts. Artsy shall not be liable for any such Seller Taxes or other transaction taxes, interests and penalties asserted against you. You agree to provide Artsy all information necessary for Artsy to prepare tax returns or defend against a tax audit or other proceeding with a taxing authority. However, Artsy shall retain sole control and discretion with respect to any such proceedings. Your obligations set forth in this section 3.7 will survive this Agreement and your use of the Services.
3.8 Artist’s Resale Royalty. The laws of some countries entitle the Artist or the Artist’s estate to a royalty. As between you and us, you will be solely responsible for determining the applicability and the payment of any such royalties with respect to all Items sold by you. You agree that if we pay any such royalties with respect to any Item sold by you without being reimbursed by the buyer, you authorize us to retain such royalty as an amount owed to us by you when settling your account as provided in section 3.5 above, and if we fail to do so in any case, you agree to reimburse us for the full amount of such royalty by check as soon as practicable upon our request.
3.9 Chargebacks and Disputed Charges. After we pay you the Net Proceeds for the sale of any Item, if the buyer (or their financial institution or credit card company) initiates a Chargeback or otherwise cancels any payment (e.g. a check or wire transfer) made to us with respect to such Item resulting in the deduction of funds from any of our accounts, whether or not you have released physical possession of such Item, you will be immediately liable to us for the lesser of: (i) the total amount of such Chargeback or other cancelled payment; and (ii) the total amount of such Net Proceeds. In addition, if any Chargeback or other cancelled payment occurs in connection with any credit card or check fraud (i.e., the fraudulent purchase of an Item arising out of the unauthorized use of a third party's credit card or check information) resulting in the deduction of funds from any of our accounts after we have paid you the Net Proceeds with respect to such fraudulent purchase, whether or not you have released physical possession of such Item, you will be immediately liable to us for the lesser of: (i) the total amount of such Chargeback or other cancelled payment; and (ii) the total amount of such Net Proceeds. You authorize us to retain any and all amounts that you owe us under this section as amounts owed to us by you when settling your account as provided in section 3.5 above, and if we fail to do so in any case, you agree to reimburse us for such amounts by check as soon as practicable upon our request, or, in the alternative, you agree that we may charge any such outstanding payments to the credit card you have on file with us. You agree that we will not be liable for any credit card or check fraud or resulting damage or loss. You agree to provide us, in a timely manner and at your own cost, any reasonable assistance and information we may require in order to address and/or dispute any Chargebacks or other cancelled payments. In order to address and/or dispute any Chargebacks or other cancelled payments, you agree that we may share relevant records and information with the applicable credit card holder and/or bank account holder, their financial institution, your financial institution, and any Payment Processor involved in the transaction at issue. Any statement in this Agreement or elsewhere (whether written, oral or implied) notwithstanding, our obligation to remit funds to you that we have collected on your behalf will be limited to cleared funds that we have actually received and that are not subject to Chargeback or other payment cancellation. For purposes of this Agreement, "Chargeback" means the reversal of a credit card transaction.
3.10 Withholding Payments. If we reasonably conclude based on information available to us that any of your actions or performance in connection with the Services or this Agreement may result in buyer disputes, Chargebacks or other claims, then we may, at our sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you in connection with the Services or this Agreement until completion of any investigations regarding such actions or performance by you. In any case, you authorize us to retain and use any funds that we have collected from any third party that would otherwise be due to you under this Agreement or otherwise in order to pay any amounts that you owe us in connection with the Services or this Agreement. We will not be liable to you if we act in accordance with the provisions of this section.
3.11 Online Purchase Cancellation. In the unlikely event of a cancellation or return request of an Online Purchase, 1) if a buyer wishes to cancel or return an order because it was not accurately described, you agree to accept their request; 2) if a buyer is entitled to cancel the sale under the Authorship Warranty, as described in the Conditions of Sale, you agree to accept their request; and, 3) if a buyer wishes to cancel or return an order for any other reason, you will work with Artsy and the buyer to seek an amicable resolution.
If we cancel the sale pursuant to the above, you will accept the return of the Item if the Item has been collected from you. If we have already paid you any of the Net Proceeds, you shall return to us any such Net Proceeds no later than five (5) days of us notifying you that the sale is cancelled.
If cancellation of the sale of an Item is caused by your (i) act(s) or omission(s), (ii) your breach of any of your representations in section 5 below, or (iii) if the sale is canceled pursuant to the Authorship Warranty, you must pay us in full when we ask you to do so for any loss, liability (whether to the buyer or anyone else), return shipping, cost or expense (including legal fees) we or the buyer incurs as a result of such cancellation.
3.12 EU Cancellation Right. Pursuant to the European Union (“EU”) Directive on Consumer Rights (2011/83/EC), a buyer in the EU (an “EU Buyer”) who purchases a work on Artsy from a professional seller (a “trader”, as that term is defined in Article 2 of 2011/83/EC) may have the right to cancel such sale contract within fourteen (14) days after they or a person they authorize (other than the carrier) take/s physical possession of such work, for any reason and without incurring liability for doing so. If applicable, when an EU Buyer exercises this cancellation right, they must return the work, and you must refund the EU Buyer for payments already made to you for the purchase and applicable shipping of the lot. To exercise this cancellation right, the EU Buyer must inform you through a clear statement (i.e., a letter sent by post or email) or may use this model cancellation form.
4. Custody, Shipping and Fulfillment
4.1 Our Role. Unless we expressly agree otherwise in writing with respect to a certain Item, the packing, handling, pickup, shipping, and fulfillment of each Item sold will be solely at yours and the buyer’s risk. At no time will we assume custody, physical possession, risk or responsibility for any Item. We may, but are not obligated to, recommend third-party packers, handlers, shippers or other service providers to buyers. However, any such 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 third-party service provider for any purpose and do not guarantee that any seller or buyer will be able to use any product or service of any third-party service provider at any time or in connection with any transaction. We will not be liable or responsible, directly or indirectly, for the acts, omissions or policies of any third party in connection with the shipping, packing or handling of any Item, whether or not recommended by us.
4.2 Release of Purchased Property. You agree to release physical possession of an Item (i) if the buyer has selected a common carrier shipment method (ie FedEx), on the date of collection scheduled by such common carrier, and if not on that date, within seven (7) days thereof, (ii) if the buyer has selected a fine art shipping method, within seven (7) days of such fine art shipper’s notice to you that the Item is ready for pickup, or (iii) if the buyer picks up the work in person or if you arrange for shipping directly with the buyer, within seven (7) days of our notice to you that Artsy is in receipt of the Total Purchase Price for the Online Purchase.
If the buyer has selected a common carrier shipment method, you will be responsible for safely and securely packing the Item, following provided instructions and supplying supporting photographs of the packed Item(s).
If a buyer requests to pick up the Item in person, you will use reasonable efforts to make the Item available to the buyer. If the Item will not be available for pickup, you shall notify Artsy and the buyer immediately so that the buyer can select an alternative delivery method.
If you and we have agreed in writing, you may arrange shipping directly with the buyer. If you arrange shipping, you agree to supply shipment tracking details to Artsy, and to provide us, if requested, a copy of release records for each such Item signed by the buyer or a copy of the shipping company’s bill of lading signed by you confirming that you have released such Item. If you coordinate shipment and the work is lost or damaged, you will use best efforts to work with the shipper to resolve the matter. Further, you are responsible for (i) insuring Items in your possession unless an alternative agreement was previously agreed with Artsy; (ii) accepting a return, refund, or discount on a lost or damaged work; and, (iii) in the case of a return pursuant to Section 3.11 above or if you are in breach of any of your representations in section 5 below, covering return shipment and insurance on that shipment.
In the case that the Item is located at a storage facility, you will be liable for payment of all pre-collection storage and insurance costs, as well as any costs associated with the release of the Item.
5. Seller’s Representations and Warranties. You represent and warrant that (i) you are the sole owner of each Item or are duly authorized by the owner of each Item to offer and sell such Item; (ii) you have the right to offer and sell each Item subject to this Agreement; (iii) upon sale, good, valid and marketable title and right of possession to each Item will pass to the buyer free from any claims, restrictions, liens or other encumbrances of any third party, including but not limited to claims of governments or governmental agencies and any contractual restrictions on resale; (iv) each Item is authentic and is not counterfeit and you have no reason to believe otherwise; (v) you have provided Artsy, and until the conclusion of the Online Sale, will continue to provide Artsy, all information you have regarding the Item, including authenticity, provenance, restoration, and condition, and you guarantee that such information is accurate, and you authorize Artsy to share such information with potential buyers upon their request; (vi) if applicable, each Item has been lawfully imported into the jurisdiction in which it is currently located and lawfully exported subject to the laws of the country in which it was formerly located, and any taxes and/or duties on such import and export have been paid; (vii) any and all data provided by you to describe an Item is accurate; and (viii) you will collect, pay, report and remit any and all Seller Taxes and any other taxes and duties as required by applicable law in connection with the listing, marketing, offer or sale of each Item, including but not limited to any Seller Taxes that we may receive and remit to you in connection with any collection tools made available by us and used by you, and you will notify us in writing of any taxes or duties that may be payable by us on your behalf in any jurisdiction.
You agree that the above representations and warranties are for the benefit of Artsy and the buyer of each Item, that such representations and warranties will survive this Agreement and the transactions contemplated by this Agreement, and that such representations and warranties apply to each Item that you list for sale, market, offer or sell on or in connection with the Services. You agree to immediately notify us in writing of any event or information that may cause any of the above representations or warranties to be inaccurate or breached in any way.
6. Compliance with Laws, Marketing and Third-Party Rights. You agree that your use of the Services and all of your acts and performance in connection with this Agreement, including but not limited to your listing, marketing, offer, and sale of all Items, will (i) comply at all times with all applicable local, state, national, and international laws, rules, and regulations, including but not limited to any tax laws, consumer protection laws, antitrust laws, and export and/or import laws; and (ii) not violate the rights of any third party, including but not limited to any copyright, moral right, trademark right, privacy right, publicity right, or contractual right.
As part of our Services, we shall have the right, in our sole discretion, to market and promote your Item(s) on our website, social media, newsletter, or elsewhere. The Site includes features that enable users to post images on third-party social media services, and you authorize the use of these features with respect to any images provided to us of your Item(s). The Site also includes a searchable database of artwork and other property (“Database”). Artsy will include each Item in the Database during and after the Online Sale.
If the use of any images or other material that you wish to make available on or in connection with the Services, whether with respect to any Item or otherwise, requires any licenses or permissions from any copyright holder or other person or entity having rights in or with respect to such material, you agree that you are solely responsible for obtaining and will obtain at your own cost any such licenses or permissions before making any such images or other material available on or in connection with the Services, and that we will not have to pay any royalty or other fee to you or any third party with respect to the use of any images or other material made available by you on or in connection with the Services.
7. User Information. You may receive or otherwise obtain the winning bidder’s name, email addresses, postal addresses, or other information when a buyer purchases an Item from you (collectively, "Buyer Information"). You agree to use Buyer Information only for purposes related to effectuating a transaction, and not for unsolicited marketing emails or other unsolicited communications.
8. Investigation and Disclosure. We reserve the right, but not the obligation, at any time at our sole discretion, to (i) monitor any activity or material located on or occurring through the Services and investigate as we deem appropriate and (ii) investigate any reported or suspected violations of our agreements or policies, or any third-party complaints, and take any actions that we deem appropriate, which may include, but are not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any listings or material on the Services.
We reserve the right, at our sole discretion, to report and disclose any activity or material that we suspect violate any law or regulation to appropriate law enforcement officials, regulators or other third parties. In order to cooperate with governmental requests, to comply with applicable laws, to protect the Services or Users, or to ensure the integrity and operation of the Services and our business, we reserve the right, at our sole discretion, to disclose any information as we consider necessary or appropriate, including but not limited to User contact information, IP addresses and traffic information, usage history, and posted material. We will not be liable to you for exercising our rights reserved in this section.
9. Disclaimer of Warranties. YOUR USE OF THE SERVICES AS A SELLER 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 ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE AVAILABLE, ACCESSIBLE, TIMELY, ACCURATE, RELIABLE, SECURE, OR FREE OF ERRORS, ALL OF WHICH ARTSY AND OUR OFFICERS, OWNERS, DIRECTORS, CONSULTANTS, AGENTS, ATTORNEYS AND EMPLOYEES (COLLECTIVELY, THE "ARTSY PARTIES") EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IF THE USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING ANY EQUIPMENT, MATERIAL OR DATA, THE ARTSY PARTIES WILL NOT BE RESPONSIBLE FOR THOSE COSTS OR LOSSES, AND YOU SHOULD BACKUP YOUR DATA AT ALL TIMES. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM ANY OF THE ARTSY PARTIES OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY BY US NOT EXPRESSLY STATED IN THIS AGREEMENT OR IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND US. THE ARTSY PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH REGARD TO ANY ITEM, ITS QUALITY, SIZE, CONDITION, DESCRIPTION, ATTRIBUTION, AUTHENTICITY, LEGAL TITLE, AVAILABILITY TO SELL, ANTICIPATED SELLING PRICE, VALUE OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
10. 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 USER AND/OR BUYER. IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS AND/OR BUYERS, 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.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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, DATA, USE, GOODWILL OR OTHER INTANGIBLE LOSSES, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (i) THIS AGREEMENT; (ii) THE SERVICES; (iii) THE USE OF OR INABILITY TO USE THE SERVICES; (iv) ANY ITEM; OR (v) ANY TRANSACTIONS ENTERED INTO THROUGH OR IN CONNECTION WITH THE SERVICES. NO DELAY OR FAILURE BY US TO PERFORM UNDER THIS AGREEMENT DUE TO ANY GOVERNMENTAL REGULATION OR RESTRICTION, ACT OF WAR OR TERROR, POWER OUTAGE, FIRE, FLOOD OR OTHER NATURAL DISASTER, OR ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL, WILL BE DEEMED A BREACH OF THIS AGREEMENT. IN NO EVENT WILL THE TOTAL LIABILITY OF ARTSY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY YOU TO ARTSY UNDER THE PREVIOUS 12 MONTHS.
12. Indemnification. You agree to indemnify, defend, and hold harmless the Artsy Parties from and against any and all claims, costs, liabilities, judgments, penalties, losses, damages, and expenses (including reasonable attorneys' fees) arising out of any claims, actions, audits, investigations, inquiries or other proceedings instituted by any third party that arise out of or relate to (i) any actual or alleged breach of any of your agreements, obligations, representations or warranties set forth in this Agreement; (ii) your violation of any law or the rights of any third party (including but not limited to any intellectual property right, moral right, privacy right, publicity right, or contractual right); or (iii) Seller Taxes, or the collection or payment of or failure to collect or pay Seller Taxes.
You agree to reimburse us for any costs and expenses (including reasonable attorneys’ fees) arising out of any claims by us against you arising out of your breach or alleged breach of this Agreement or other misuse of the Services by you under this Agreement. Your obligations set forth in this section 12 will survive this Agreement and your use of the Services.
13. Choice of Law and Dispute Resolution. This Agreement, and the rights and obligations of you and us under this Agreement, 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 of America, expressly excluding any conflict of laws principles, and without regard to your location or the location of any activities occurring under this Agreement. YOU AND WE EACH AGREE THAT ANY CLAIMS OR DISPUTES INVOLVING YOU AND US ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN NEW YORK COUNTY, NEW YORK, UNITED STATES, WHETHER OR NOT ANY SUCH CLAIM OR DISPUTE INVOLVES ANY THIRD PARTIES. 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. IN ADDITION, YOU AND WE EACH EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE RESOLUTION OF ANY SUCH CLAIMS OR DISPUTES. To ensure that disputes are dealt with soon after they arise, you agree that regardless of any law to the contrary, each claim or cause of action you have against us arising out of or related to this Agreement or the Services must be filed within the applicable statute of limitations, or, if earlier, one year after such claim or cause of action arose, or else such claim or cause of action will be permanently barred. Nothing in this Agreement will prevent us from seeking injunctive or other equitable relief in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not in any way apply to this Agreement or to the listing, marketing, offer or sale of any Item through the Services.
14. Term and Termination. This Agreement is effective during the term of any Listing Schedule that incorporates the Agreement. The term of a Listing Schedule shall be specified in the Listing Schedule. ANY STATEMENT IN THIS AGREEMENT OR ELSEWHERE (WHETHER WRITTEN, ORAL OR IMPLIED) NOTWITHSTANDING, WE RESERVE THE RIGHT TO TERMINATE THIS AGREEMENT AND/OR TO LIMIT, TERMINATE OR SUSPEND YOUR ACCESS TO OR USE OF ANY OR ALL OF THE SERVICES, AT ANY TIME AT OUR SOLE DISCRETION, WITH OR WITHOUT NOTICE, FOR ANY OR NO REASON, INCLUDING, BUT NOT LIMITED TO, IF YOU BREACH ANY PROVISION OF THIS AGREEMENT OR IF WE BELIEVE THAT YOUR ACTIONS MAY BE EXPOSING US, YOU, OR OTHERS TO LEGAL OR FINANCIAL LIABILITY, AND WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSSES OF ANY KIND RESULTING DIRECTLY OR INDIRECTLY FROM ANY SUCH LIMITATION, TERMINATION OR SUSPENSION BY US, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF OR INABILITY TO DO BUSINESS OR TO PROVIDE OR USE ANY PRODUCT OR SERVICE. After any termination of this Agreement and/or after you otherwise stop using the Services as a seller, the following will survive and remain in full force and effect: (i) all remedies for breach of this Agreement; (ii) all outstanding obligations under this Agreement, including but not limited to any obligations with respect to any transactions arising before such termination; and (iii) sections 1.2, 2.3, and 3-17 (inclusive) of this Agreement.
15. Ownership. We own and retain, solely and exclusively, all rights, title, and interest in and to the Services, including but not limited to all copyrights, trademark rights, trade secrets, patent rights, moral rights, database rights, and other intellectual property rights therein. Except for the limited use of the Services that we grant to you under this Agreement, nothing in this Agreement grants you any license or permission to use any of our trademarks, service marks or logos in any manner, or any other license or permission under any copyright, trademark or other intellectual property rights of Artsy or any third party, whether by implication, estoppel or otherwise. We reserve all rights not expressly granted to you in this Agreement or in a separate written agreement between you and us.
16. Confidentiality. Both of you and we agree to keep the terms of this Agreement confidential other than disclosing them to our respective professional advisors and unless otherwise required by law, as a result of a valid legal process, by a court or a regulating authority, compelling the disclosure.
18. No Agency or Third-Party Beneficiary. You and we are independent contractors under this Agreement. Nothing stated in or implied from this Agreement will create any agency, partnership, joint venture, employment, fiduciary, trustee, sales representative, or franchise relationship between you and us. You will not represent yourself as our agent to any third party and have no authority to make or accept any offer or representation on our behalf. Except as expressly otherwise provided in this Agreement, nothing stated in or implied from this Agreement will give any party other than you or us any legal or equitable right, remedy or claim under or with respect to this Agreement.
19. Miscellaneous. No delay or failure by us to exercise or enforce any right or provision of this Agreement 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 this Agreement 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 of any right or remedy by us will prevent our further exercise of any other right or remedy. This Agreement will inure to the benefit of and is intended to be enforceable by each party and their respective successors and assigns, but you are not permitted to assign, transfer or sub-license this Agreement or any right or obligation under this Agreement without our express prior written consent. This Agreement was written in English (U.S.). To the extent any translated version of this Agreement conflicts with the English version, the English version controls. The paragraph and section titles in this Agreement are for convenience only and have no legal or contractual effect.