ARTBAY CONDITIONS OF SALE
These Conditions of Sale (“Conditions”) describe the terms and conditions that govern the relationship between Artbay Gallery – Sole Proprietorship, LLC. d/b/a Artbay (“Artbay” or “we” or “our” or “us”) and the buyers, prospective buyers, bidders, sellers and prospective sellers that use the Artbay website, products, and services (collectively, the “Services”) to buy, bid on, inquire about, list, market, offer for sale, or sell any property. Such buyers, prospective buyers and bidders are hereinafter referred to as “Collectors,” such sellers and prospective sellers are hereinafter referred to as “Sellers,” and such Collectors and Sellers are hereinafter referred to as “you” or “your.” By using any of the Services to buy, bid on, inquire about, list, market, offer for sale, or sell any property, you agree to be bound by these Conditions. If you are using the Services on behalf of a company, organization or other legal entity, you represent and warrant that you are authorized to bind that entity to these Conditions, in which case the terms “you” and “your” in these Conditions will refer to that entity. In these Conditions, “on the Services” means on the Artbay website and/or on any Artbay application that you may use, as applicable. By using the Services in any manner, you also accept our Terms of Use, which governs your access to and use of the Services more generally, and our Privacy Policy, which describes our practices for the collection and use of your personal information, each of which (the Terms of Use and Privacy Policy) are hereby incorporated in these Conditions by reference. Your use of certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms“), including, but not limited to, our Listing Requirements and Restricted Materials Policy, described hereafter as may be amended by us at our sole discretion, which are hereby incorporated herein by reference, and you understand and agree that by using any such Services, you agree to also comply with these Additional Terms and are responsible for reading them carefully before listing, marketing, offering, or selling any property through the Services. In the event of any conflict between these Conditions and our Terms of Use in relation to the Services, these Conditions shall control to the extent of the conflict.
Please read these Conditions carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Conditions include information about future changes to these Conditions and limitations of liability. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. Please feel free to contact us if you have any questions.
1. BASIC CONDITIONS
The Services include an online marketplace and tools to buy, bid on, inquire about, list, market, offer for sale, and sell artwork and other property. All property is offered for sale and sold directly from the Seller to the Collector, and we are not a party to any sale, except as expressly stated in section 8 (Artbay Sales) below. We may facilitate communication, payment, shipping, or other services between Collectors and Sellers in connection with some property. However, we are not the agent of any Collector or Seller for any purpose. Unless we agree otherwise in writing, all property will be listed, marketed, offered and sold under the Seller’s name. Seller agrees that we may use Seller’s name in connection with the listing, marketing, offer and sale of any and all items by you on and in connection with the Services, and to inform others of the sellers that use the Services. You are responsible for providing all equipment (such as computers or mobile devices), Internet and telecommunication service necessary to use the Services and/or to communicate with us, at your own cost. You are responsible for all of your own expenses in connection with these Conditions and your use of the Services as a Seller or Collector.
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services.
2. ADDITIONAL PROPERTY TERMS
Sellers that use the Services are separate businesses from Artbay 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, in the Seller Conditions of Sale, or otherwise made available on the Services in connection with such property (the “Seller Conditions”), and Collectors 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 Conditions, the Seller Conditions will govern to the extent the conflict relates to the Seller, including without limitation the Seller’s rights, protections or obligations, and these Conditions will govern to the extent the conflict relates to Artbay, including without limitation Artbay’s rights, protections or obligations. For the sake of clarity, in no event will any Seller Conditions constitute any representation, warranty, or assumption of liability of any kind by us.
3. LISTINGS
Listing Descriptions. Sellers are solely responsible for: (i) accurately describing, and must accurately describe, property on the Services and (ii) all images, information and other material that Sellers submit, upload, post, publish or otherwise make available or accessible on or in connection with the Services. Information provided by Artbay to Collectors in respect of any lot, including any pre-sale estimate, whether written or oral, and information in any listing, condition or other report, commentary or valuation, is not a representation of fact but rather a statement of belief held by Artbay based solely upon information provided to us by the Seller. Artbay reserves the right in its sole discretion to revise, edit, and modify your listings as well as to unpublish a listing. Artbay may revise pre-sale estimates from time to time in our absolute discretion. Listing descriptions and condition reports may make reference to particular imperfections of a lot, but Collectors should note that lots may have other faults not expressly referred to in the listing or condition report. All dimensions are approximate. Illustrations are for identification purposes only and cannot be used as precise indications of size or to convey full information as to the actual condition of lots. Upon request, additional condition reports may be furnished by Sellers to Collectors at their own cost and expense.
If a lot is sold framed, Artbay is not responsible for the condition of the frame.
Artist Information. The Services may include features and settings that enable Sellers to provide information with respect to artists, designers or other makers (each, an “Artist”) that created property listed or offered for sale by you and/or Artists with whom you otherwise have an affiliation or relationship. You agree that all information you provide with respect to each Artist will be true and accurate, that you will not misrepresent your affiliation or relationship with any Artist on or in connection with the Services, and that you will update all such information and settings on the Services as necessary to keep them accurate and current. In addition to any information you may provide about an Artist (which we may edit), we reserve the right to publish information about Artists that are created and edited by us at our sole discretion.
Corrections. Artbay reserves the right, but has no obligation, to modify Seller listings and Artist information, for example, in order to correct any inaccuracies.
Seller Information. Sellers agree that the contact information they provide to us may be posted as part of their listings on the Services and as part of their online profile on the Services, subject to their privacy settings on the Services as provided by us.
4. REGISTRATION
In order to use the Services, You are required to create an Artbay account and complete all required forms and provide all required information, which may include but is not limited to accurate contact information (including permanent business address and warehouse address, if applicable), tax or VAT registration number, financial and/or payment information, or supporting documentation of such information before being able to use the Services, including but not limited to listing, marketing, offering, or selling through the Services, or before we will accept payment from Collectors or remit funds to Sellers by electronic transfer. We may also require that you provide further financial, business, or personal information at any time to verify your identity. If a Seller is located in the UK, EU, Norway, or Switzerland and is exempt from collecting VAT, the Seller agrees to provide us with documentation evidencing such exemption at any time upon our request. We reserve the right to reject such documentation at our sole discretion. We also reserve the right to reject transactions if there is doubt concerning the claimed exemption. Sellers agree to update all VAT information as necessary to keep it accurate and current. We may also require you to provide documentation of your identity, bank or other financial references, and other qualifying information at any time. Should you fail to provide this documentation or information upon our request within a reasonable amount of time before, during, or after a related sale, we may cancel the sale and will have no liability to the Collector or the Seller for doing so. You agree to update all such information as necessary to keep it accurate and current. You must not use any name that you are not legally authorized to use in connection with your account or use of the Services. You agree that you will maintain the confidentiality of your password and will not assign, rent, sell, lease, sub-license, or otherwise transfer your account to any third party. You agree that you are responsible for any and all activity that occurs under or through your account or password. We reserve the right to change your password, require you to change your password or require additional information to verify your identity before allowing you to access or use any or all of the Services, at any time at our sole discretion, for any reason, including, but not limited to, if we believe such action is necessary to maintain the security of your account or the Services. You agree to notify us immediately in writing if you suspect or become aware of any unauthorized access to or use of your account or password or other breach of security on the Services.
Collectors. We may require Collectors to deposit a portion of any bid or offer that you place, in which case, if you are not the winning bidder or if the sale is not finalized, as applicable, your deposit will be refunded to you, and if you are the winning bidder or buyer, your deposit may be used to offset the appropriate portion of the purchase price. As a security measure, we may, but are not obligated to, impose transaction limits on Collectors at any time, relating to the value of any transaction or remittance processed by us, the cumulative value of all transactions or remittances processed by us during a period of time, or the number of transactions processed by us per day or other period of time, at our sole discretion. We will not be liable to you (or Seller) if we permit any Seller to cancel an order because an authorization or charge on your credit card is unsuccessful.
Sellers. 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. In order to use our Online Purchase (as defined below) feature, you will be required to open an account with a third party payment processor as chosen by us (“Payment Processor”). We do not guarantee that you will be able to register with or use any services of any Payment Processor, and we will not be liable or responsible for any loss of or inability to do business with any Payment Processor or other damage or loss of any kind resulting directly or indirectly from your relationship or other interactions with any Payment Processor, including without limitation: (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 by any Payment Processor to accept any payment by credit card or other means or any failure by any Payment Processor to remit funds to sellers by electronic transfer in connection with any transaction. Seller agrees to (a) defend Artbay against any claim by any Payment Processor in relation to Seller’s relationship or other interactions with such Payment Processor and (b) indemnify Artbay for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of such claim. We will not be liable to you (or Collector) if we permit any Collector to cancel an order because any Payment Processor’s services become unavailable after the Collector initiates the transaction. We reserve the right to terminate Seller’s account with our Payment Processor and suspend Seller’s use of the Online Purchase feature at our sole discretion.
5. INQUIRIES
The Services may include features that enable Collectors to contact us regarding property listed on the Services, and you agree that Users may contact you or us using these features (“Inquiry”). We and the Seller will have no obligation to accept, respond to, or forward any Inquiry and no liability for any delay or failure to do so. At our discretion, Artbay may inform any Collector who inquires about any property of its price information and other information available to us about such property and/or other properties as we deem relevant to the Inquiry, whether or not such information is posted on the Services. We may administer each Inquiry that we receive at our sole discretion and may inform anyone who inquiries about a property of its price information and other information available to us about such property and/or other properties as we deem relevant to the Inquiry, whether or not such information is posted on the Services. Any Inquiry order submitted outside of the Services will be completed directly between the Collector and Seller, and Artbay shall have no liability for such offline transaction.
Sellers agree that the contact information you provide us may be posted as part of your listings on the Services and as part of your online profile on the Services, subject to your privacy settings on the Services as provided by us. Unless we expressly agree otherwise in writing, each sale that arises out of an Inquiry and that is not an Online Purchase (“Inquiry Sale”) will be conducted directly between the Seller and Collector, and the Seller will be solely responsible for collecting payment from each Inquiry Sale Collector. If we agree to collect any payment from any Collector on the Seller’s behalf in connection with any Inquiry Sale despite our having no obligation to do so, such collection and any related remittance of funds by us to the Seller will be subject to all applicable terms and conditions of these Conditions, as if such Inquiry Sale were an Online Purchase.
Sellers may receive or otherwise obtain Collector names, email addresses, postal addresses, or other information when a Collector makes an Inquiry or purchases an property from you, or otherwise in connection with your use of the Services (collectively, “User Information”), however we are under no obligation to provide such information to you if requested. You agree to use User Information only for purposes related to User Inquiries or transactions, and not for unsolicited marketing emails or other unsolicited communications, except if a User has given you their express consent to use their User Information for such purposes.
6. ONLINE PURCHASES
Features. Some property on the Services may be available to order using the online purchase feature (“Buy Now”), make an offer feature (“Make Offer”), or inquiry offer feature (“Inquiry Offer”) (each of Buy Now, Make Offer and Inquiry Offer, an “Online Purchase”). Except as expressly stated in these Conditions, online Purchases are binding on the Collector and Seller. Collectors and Sellers are required to complete the Online Purchase transaction subject to these Conditions. Where available, the Buy Now feature will be indicated on the Services with a “Buy Now” or comparable button. For some items, the Make Offer feature may also be available, indicated on the Services with a “Make Offer” or comparable button. In these cases, the Collector may be able to place an offer for such items using the feature, and the Seller may choose to accept the offer or respond with a counteroffer. Where available, the Collector may be able to place an offer using Inquiry Offer for such items using the feature, and the Seller may choose to accept the offer or respond with a counteroffer. The property will not be removed from a Seller’s inventory until such time as a Seller accepts the Buy Now, Make Offer, or Inquiry Offer. We may designate some property as sold or not for sale on the Services immediately when we become aware that it is the subject of an Online Purchase, whether or not such Online Purchase transaction is still pending. All Online Purchase transactions will be conducted in the currency designated by us. We will be entitled to collect, and Sellers agree to pay us, a commission on each Online Purchase. Our current commission rate is set forth in a separate written agreement between us and each Seller.
Buyer’s Responsibility. Each Collector that places an order using “Buy Now” or makes an offer using “Make Offer” or “Inquiry Offer” is required to complete the transaction if they hit the “Buy Now” button, if their offer which they made using the “Make Offer” function is accepted, or if their offer which they made using the “Inquiry Offer” function (and which contains all the material terms of the offer (e.g., shipping costs related to the property)) is accepted. When a Collector purchases property or makes an offer on any item, the Collector is accepting personal liability for the Total Purchase Price (defined below).
Inquiries. The Seller will have no obligation to accept any Make Offer or Inquiry Offer, and we and the Seller will have no liability for any delay or failure to do so.
All Offers and Sales are Final. Except as expressly stated in these conditions, all offers, counteroffers and sales are final once submitted and may not be cancelled or modified by the Collector or Seller, except that the Collector may cancel an Online Purchase for any reason within twenty-four (24) hours of Seller approval of such Online Purchase. In the unlikely event of a cancellation or return request of an Online Purchase, (i) if a Collector wishes to cancel before their order has been confirmed, Artbay will accommodate the request; (ii) if a Collector wishes to cancel or return an order because it was not accurately described, the Seller agrees to accept their request; and (iii) if a Collector wishes to cancel or return an order for any other reason, the Seller will work with Artbay and the Collector to seek an amicable resolution.
Offline Sales. You agree that any sales initiated via Buy Now, Make Offer, or Inquiry Offer must be finalized through this feature and processed by Artbay, and such Online Purchase may not be taken offline. Should we discover that a sale has been completed outside of our Services, we reserve the right to charge the Collector and Seller a commission on that sale. Furthermore, if an Online Purchase is completed outside of our Services, the protections afforded by these Conditions of sale.
Property Verification. Artbay reserves the right to review any property before allowing the Seller to proceed with the sale.
In Auction Sales. 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 7 (Auction Sales) 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.
7. AUCTION SALES
Bidder’s Responsibility. Each Collector 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 the Collector is 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.
Our Discretion. We reserve the right, at our absolute discretion, to: (i) reject or revoke your 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.
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. We may implement the Reserve for any item by opening bidding on behalf of the Seller.
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 a set number of 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 set number of minutes after the original closing time, and may continue to extend bidding for such item until such set number of minutes pass without any further bids being placed. The extension of one item’s closing time will not affect the closing time of any other item. Please refer to the item’s listing page for the extension time set for that 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.
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.
8. ARTBAY SALES
On occasion, Artbay itself may sell property through the Services. If we are the seller of an item, we will expressly identify Artbay as the seller on the Services and when performing a transaction with the Collector, 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.
9. ARTBAY RIGHTS
Artbay reserves the right at any time at our sole discretion, but has no obligation to: (i) refuse registration to any Collector, Seller, person or entity; (ii) modify, edit, revise or withdraw any property from the Services; (iii) revise, edit, and modify Seller listings as well as remove a listing (e.g., if the listing is factually inaccurate); (iv) reject any bid or offer made using the Online Purchase feature, (v) rescind a sale and cancel or reverse a related transaction (including without limitation, if the property previously sold and is no longer available for sale, the description of the property was not accurate or the property has been damaged); and (vi) terminate your access to our Services. Artbay will have no liability whatsoever for taking any of the foregoing actions. Upon notice of Artbay’s election to rescind the sale or to cancel or reverse a transaction, Collector will promptly return the lot to Artbay or the Seller, at our discretion, and we or the Seller will then refund the Total Purchase Price. The refund shall constitute the sole remedy and recourse of the Collector or Seller against Artbay and the Seller or Collector, as applicable, with respect to such rescinded sale and related cancelled or reversed transaction.
10. ARTIST RESALE ROYALTY
The laws of some countries entitle the artist or the artist’s estate to a royalty. If applicable, as indicated on the Services, the Collector shall be required to pay such royalty, which is calculated as a percentage of the item’s final hammer price. The Seller shall be solely responsible for determining the applicability of the royalty and for remitting the royalty to the appropriate individual or entity. The Seller agrees that if we pay any such royalties with respect to any property sold by Seller without being reimbursed by the Collector, the Seller authorizes us to retain such royalty as an amount owed to us by Seller when settling Seller’s account, and if we fail to do so in any case, Seller agrees to reimburse us for the full amount of such royalty by check as soon as practicable upon our request.
11. PAYMENT
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 Collector and the Seller is concluded, and the Collector must pay the Total Purchase Price (i) immediately upon the conclusion of an Online Purchase, or (ii) no later than 5:00 PM GST on the seventh (7th) day after the conclusion of all other sales (“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 Collector under applicable law (“Transactional Taxes”); (iii) any applicable artist resale royalty; (iv) any and all shipping, packing, and insurance costs; (v) any applicable buyer’s premium; and (vi) any and all other applicable charges Where a separate shipping invoice is issued to the Collector, the Collector will be required to settle the invoice within five (5) business days of the date of the invoice. Shipment of the property will only be processed once all payments from the Collector have been received. 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. We may accept payment from buyers by check, wire transfer, or credit or debit card at our sole discretion, and we have no obligation to accept payment by any other means. We accept Visa, MasterCard and may place limits on the total amount of any credit card order that we will process at our sole discretion. We may use Payment Processors selected at our sole discretion to process any payment.
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 Collector. Risk of loss to each item will pass to the Collector when legal title to such item passes to the Collector.
Artbay Payment Processing. We may accept payment from the Collector on behalf of the Seller in connection with Online Purchases and other sales, in which case we will notify the Collector that we are doing so by email and/or by providing the Collector with an option to check out on the Services. We may accept payments from Collectors by credit card, check or wire transfer at our sole discretion, and have no obligation to accept payment by other means. At our sole discretion, we may deny use of certain credit cards place limits on any credit card order, and/or may use Payment Processors selected at our sole discretion to process any transaction. The Collector irrevocably authorizes us, at our option, to charge the Collector for the Total Purchase Price using any credit card information the Collector has provided on the Services, whether or not the Collector provided such credit card information in connection with the sale at issue. If any credit card payment is not approved, the Collector will remain personally liable for all amounts otherwise due. The Collector 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.A.E. Dirhams or AED (Approx. 3.67 U.S. dollars) unless we expressly agree otherwise in writing. The Collector is responsible for any currency costs incurred to make all payments to us in AED regardless of the Collector’s home currency or payment method. If we or the Seller incur any bank fees receiving any payment from the Collector by wire transfer, the Collector will be responsible for those costs and agrees that (as applicable) we or the Seller may charge those costs to the Collector. The Collector consents to us paying commissions out of amounts received from the Collector to third parties referring us clients or otherwise assisting us in connection with the sale of property.
Taxes. Unless exempt by law, the Collector is required to pay all Transactional Taxes related to the purchase or use of property by the Collector. The Collector is required to pay the Seller any Transactional Taxes to the Seller or to Artbay that either the Seller or Artbay is required to collect, but the failure of the Seller or Artbay to collect any Transactional Taxes from the Collector will not relieve the Collector’s obligation to pay them. Collectors claiming exemption from any Transactional Taxes are responsible for providing proper documentation. Any delay in obtaining or failure to obtain any relevant documentation or a refund of any Transactional 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 Transactional Taxes.
Resale. The Collector must not re-offer any purchased property for sale until the Collector has paid for the property in full and has otherwise assumed legal ownership and physical possession of the property subject to these Conditions.
Artbay Remedies for Non-Payment. Without prejudice to any rights the Seller may have, in the event that the Collector, for any reason, cancels any payment made by credit card or otherwise fails to pay the Total Purchase Price will respect to any property by the Payment Deadline, the Collector will be in default (“Collector Default”), Artbay may in our sole discretion exercise one or more of the following remedies: (i) cancel the sale of the lot, retaining any partial payment of the Total Purchase Price as liquidated damages; (ii) reject future bids from the Collector or render such bids subject to payment of a deposit; (iii) charge interest at 15% per annum, or the maximum amount permitted by applicable law, whichever is less, from the date payment became due until the date the Total Purchase Price is received in cleared funds; (iv) resell the lot by auction or private sale, with estimates and a reserve set at Artbay’s reasonable discretion, it being understood that in the event such resale is for less than the original hammer price and buyer’s premium for that lot, the Collector will remain liable for the shortfall together with all costs incurred in such resale; (v) commence legal proceedings to recover the hammer price and buyer’s premium for that lot, together with interest and the costs of such proceedings; (vii) set off the outstanding amount remaining unpaid by the Collector against any amounts which we or any of our affiliated companies may owe the Collector in any other transactions; (viii) release the name and address of the Collector to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs; (ix) charge a 15% cancellation fee or (x) take such other action as we deem necessary or appropriate. In addition, if the Collector for any reason fails to pay the Total Purchase Price with respect to any property by the Payment Deadline, the Collector irrevocably authorizes us, at our option, to charge the Collector for any outstanding portion of such Total Purchase Price using any credit card information the Collector has provided on the Services, whether or not the Collector provided such credit card information in connection with the sale at issue. Defaulting Collector 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 Collector Default, the collection of any amounts due from the defaulting Collector, and/or (if applicable) the resale of the property at issue.
As security to us for full payment by the buyer of all outstanding amounts due to Artbay and our affiliated companies, Artbay retains, and the buyer grants to us, a security interest in each lot purchased by the buyer and in any other property or money of the buyer in, or coming into, our possession or the possession of one of our affiliated companies. We may apply such money or deal with such property as the Uniform Commercial Code or other applicable law permits a secured creditor to do. In the event that we exercise a lien over property in our possession because the buyer is in default to one of our affiliated companies, we will so notify the buyer. Our security interest in any individual lot will terminate upon actual delivery of the lot to the buyer or the buyer’s agent.
In the event the buyer is in default of payment to any of our affiliated companies, the buyer also irrevocably authorizes Artbay to pledge the buyer’s property in our possession by actual or constructive delivery to our affiliated company as security for the payment of any outstanding amount due. Artbay will notify the buyer if the buyer’s property has been delivered to an affiliated company by way of pledge.
No Obligation. Any statement in these Conditions or elsewhere (whether written, oral or implied) notwithstanding, we have no obligation to enforce any payment from any Collector or to take any legal action or other action against any Collector that fails to make any payment under any circumstances. In no event will we be liable to any Seller for any loss of profits, revenue or anticipated savings, or any special, incidental or consequential damages arising out of any non-payment of any Collector.
12. SELLER SHIPPING
Shipping and Handling. Unless Artbay or the Seller agrees otherwise, the Collector is required to pay all shipping, packing, and transit insurance fees and costs for purchased property. Collectors must ensure that a valid delivery address is provided when bidding on or buying any property. Collectors may be required to pay additional shipping fees, storage fees, or taxes if the Collector changes their delivery address or does not promptly confirm their delivery address after paying the Total Purchase Price. Sellers may be required to pay additional shipping fees on behalf of the Collector if a shipping provider determines the property was not accurately described on the Services. Collectors and Sellers are required to disclose any and all information required to import or export the property. Shippers may contact Collectors and Sellers directly with communications necessary to pick up and deliver the property. If the Seller coordinates shipment and the property is lost or damaged, the Seller will use best efforts to work with the shipper to resolve the matter. Further, the Seller is responsible for (i) insuring shipments unless an alternative agreement was previously agreed with Artbay; (ii) accepting a return, refund, or discount on a lost or damaged property; and (iii) in the case of a return, covering return shipment and insurance on that shipment.
Our Role. We may, but are not obligated to, provide support in the shipping process, such as facilitating communication or payment between Collectors 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 Collector, Seller or third party for any purpose, including in connection with the shipping, packing or handling of any property. We do not guarantee that any Seller 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 do not control and are not liable or responsible, directly or indirectly, 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 packing, handling, pickup, shipping, fulfillment, and delivery of any purchased property. Unless otherwise specifically agreed in writing by us, at no time will we assume custody, physical possession, risk or responsibility for any property. Where Artbay facilitates shipping on behalf of the Seller and Collector (“Artbay Shipping”), the additional terms and conditions in Section 13 (Artbay Shipping) will apply.
Release of Purchased Property. The Seller agrees to release physical possession of any property within seven (7) days of confirmation from us that the Collector has paid the Total Purchase Price in good and cleared funds. The Seller agrees to supply shipment tracking details, and to provide Artbay, if requested, with a copy of release records for each such property signed by the Collector or a copy of the shipping company’s bill of lading signed by the Seller confirming that you have released such property. If the Seller coordinates shipment and the property is lost or damaged, the Seller will use best efforts to work with the shipper to resolve the matter.
13. ARTBAY SHIPPING
Claims. Where Artbay Shipping applies, any and all claims for damage to the lot in transit must be made in writing to Artbay no later than seven (7) days after the date of delivery of the lot to the Collector. Any and all claims for loss to the lot in transit must be made in writing to Artbay within seven (7) days of the latest expected delivery date to the Collector. Images documenting the claim for loss or damage must be provided to Artbay and all original packing material must be saved to support any required investigation of the claim for loss or damage. Artbay will submit such documentation to the insurance provider and communicate to the buyer any decision made by the insurance provider. If the insurance provider accepts the claim, Artbay will collect and remit to the Collector any funds due. Artbay is not responsible for negotiating with the insurance provider on the Collector’s behalf, and the Collector accepts that all decisions made by the insurance provider, as communicated to them by Artbay, are final and binding and cannot be appealed, challenged, or reversed. Please note that if you waive a signature-upon-delivery requirement, you will not be permitted to submit a claim for loss or damage.
Customs and Duties. It is solely the Collector’s responsibility to maintain all records required under the customs and/or other laws and regulations of the United Arab Emirates or other government agencies. Artbay is under no obligation to undertake any pre- or post- customs release action, including but not limited to obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, or any other related matters. The Collector is required to review all documents and declarations prepared and/or filed with UAE Customs and Border Protection, other government agencies, and/or third parties, and to immediately advise Artbay of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed by Artbay on the Collector’s behalf.
Shipping Quotes. Artbay will surface shipping provider shipping quotes based on information provided to us by the Seller and Collector. Shipping quotes are subject to change at any time. Artbay shall not be liable to the Collector or Seller for any errors or omissions related to such information provided to us or shipping providers. If a Collector changes their delivery address after paying the Total Purchase Price, Artbay has the right in our sole discretion to reject such change and ship to the original delivery location. If Artbay accepts such delivery address change, Collectors may be required to pay additional shipping fees or taxes. Sellers may be required to pay additional shipping fees on behalf of the Collector if Artbay or the shipping provider determines the property was not accurately described on the Services or that certain information was not provided by the Seller that may impact the shipping cost (including but not limited to any Seller location- or object-specific factor), or if the Seller changes the pick up location after the Collector has paid the Total Purchase Price. Collectors and Sellers are required to disclose any and all information required to import or export the property. As between Collectors, Sellers, Artbay, and shipping providers, Sellers are responsible for paying all warehouse, release, and/or storage fees. If a shipping quote includes installation, Collectors are responsible for paying any additional fees as a result of not disclosing any Collector location-specific factors. Shipping quotes for international service do not include customs, duties, or taxes, if applicable. Notwithstanding anything contained to the contrary in these Conditions, if a Collector selects the Parcel or Self Ship shipping option, such as Standard shipping, Express shipping, or Rush shipping, the Seller shall be responsible for packing the property and paying for any associated packing costs. If the Seller does not adequately pack the property, the Seller shall be responsible for any associated costs.
Cancellation Fees. If the Collector cancels a shipment after paying the Total Purchase Price, in addition to any fees payable by the Collector under Section 11 (Payment; Artbay Remedies for Non-Payment), the Collector is responsible for paying Artbay the following cancellation fees based on the shipping service selected:
Premium: 50 percent of the original quote amount if cancelled within seven (7) days of collection
Select: AED1,000 if cancelled within one (1) day of collection
Parcel (Standard, Express, or Rush Shipping): AED250 if cancelled within one (1) day of collection
International: 50 percent of the original quoted collection fee if cancelled within 7 days of collection.
14. EXPORT AND IMPORT LICENSES AND OTHER RESTRICTIONS
Collectors 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 Artbay and our officers, owners, directors, consultants, agents, and employees (collectively, the “Artbay 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 Collector’s responsibility to determine and obtain at its own cost any necessary export and/or import licenses and other required permits for purchased property, and to disclose any information relevant to the export or import of purchased property. Unless the Collector 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 Artbay 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. Artbay is under no obligation to undertake any pre- or post- customs release action, including but not limited to, obtaining binding rulings, advising of liquidations, filing of petition(s) and/or protests, or any other related matters. For the avoidance of doubt, in accordance with our Restricted Materials Policy, Sellers are prohibited from listing and/or exporting restricted materials.
15. STAFF PARTICIPATION
Artbay 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.
16. 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. You acknowledge and agree that all property appearing on the Services is subject to availability.
17. COLLECTOR REPRESENTATIONS AND WARRANTIES
Collectors represent and warrant that all information provided on or through the Services is true and accurate, and that you will not permit any other person or entity to use your Artbay account or login credentials. Collectors also represent and warrant that any purchases made or offers or bids placed by you or on your behalf are not the result of any collusive or other anti-competitive agreement and are otherwise consistent with federal and state antitrust law. Collectors warrant that the funds used for settlement are not connected with any criminal activity, including tax evasion, and you are neither under investigation, nor have you been charged with or convicted of money laundering, terrorist activities or other crimes.
18. SELLER REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants that: (i) you are the sole owner of the property or are duly authorized by the owner of the property to offer and sell such property; (ii) you have the right to offer and sell the property subject to these Conditions; (iii) upon sale, good and marketable title and right of possession to the property will pass to the Collector free from any claims, liens or other encumbrances of any third party, including but not limited to claims of governments or governmental agencies; (iv) the property is authentic and is not counterfeit and you have no reason to believe otherwise; (v) if applicable, the property 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; (vi) any and all data provided by you to describe the property is accurate and not misleading; (vii) unless expressly otherwise indicated, you will collect, pay, report and remit any and all Transactional Taxes and any other taxes and duties as required by applicable law in connection with the listing, marketing, offer or sale of the property, including but not limited to any Transactional 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; (viii) you have all necessary rights and authority to enter into these Conditions and perform your obligations under these Conditions; and (ix) none of your acts or performance in connection with these Conditions and no part of these Conditions will conflict with any obligation that you have to any third party, whether contractual or otherwise (together the “Seller Warranty”). You agree that the Seller Warranty is for the benefit of Artbay and the Collector of the property, that such Seller Warranty will survive these Conditions and the transactions contemplated by these Conditions, and that such Seller Warranty applies to all property 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 the Seller Warranty to be inaccurate or breached in any way.
19. INDEMNIFICATION
Collector agrees to indemnify, defend, and hold harmless the (i) Artbay Parties and (ii) Sellers, as applicable, 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 any actual or alleged breach of any of Collector’s agreements, obligations, representations or warranties set forth in these Conditions. Collector agrees 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 of these Conditions or other misuse of the Services by you under these Conditions. Collector’s obligations set forth in this section will survive these Conditions and Collector’s use of the Services.
Seller agrees to indemnify, defend, and hold harmless the (i) Artbay Parties and (ii) Collectors, as applicable, 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 any actual or alleged breach of any of Seller’s agreements, obligations, representations or warranties set forth in these Conditions. Seller agrees 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 of these Conditions or other misuse of the Services by you under these Conditions. Seller’s obligations set forth in this section will survive these Conditions and Seller’s use of the Services.
20. “AS IS”
Unless and except as otherwise expressly stated elsewhere in these conditions, all property sold in an auction or via online purchase is sold “as is” without any express or implied warranties, and none of the artbay parties 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, legal title, availability to sell, anticipated selling price, value, 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. Some jurisdictions do not allow the exclusion of implied warranties, so some of the exclusions in this section may not apply to you. The artbay parties make no representations or warranties as to whether the buyer will acquire any reproduction rights or other intellectual property rights in any property sold. If the use of the services results in the need for servicing or replacing any equipment, material or data, the artbay parties will not be responsible for those costs or losses, and you should backup your data at all times. The artbay parties make no representations or warranties as to 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 artbay parties will not be responsible for any errors or omissions on the services or in any supplemental materials. Unless and except as otherwise expressly stated elsewhere in these conditions, all property sold in an auction or via online purchase is final sale and is not returnable.
21. AUTHORSHIP WARRANTY
Authorship Warranty. The Seller warrants to the Collector 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 Collector subject to the following terms and conditions: (i) if more than 90 days after the delivery date, the Collector must notify the Seller in writing within sixty (60) days after the Collector 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 Collector must have remained the owner of the property without disposing of any interest in it to any third party; and (iii) the Collector must return the property to the Seller in the same condition it was in as of the original sale date. If the Collector notifies the Seller of such breach more than 180 days after the delivery date, the Seller reserves the right, as a condition to cancelling any sale under the Authorship Warranty, to require that the Collector obtain, at the Collector’s expense, the written opinions of two (2) independent and recognized experts in the field mutually acceptable to the Collector and the Seller. The Seller will not be bound by any expert opinions produced by the Collector 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 Collector and the Seller. We will have no responsibility to the Collector or the Seller in these regards. Notwithstanding the foregoing, certain Buyer Guarantees may apply to certain Online Purchase transactions if this is noted in connection with the applicable transaction (on a related web page). To the extent Artbay’s Buyer Guarantee applies to with respect to the authenticity of any property that is sold in an Online Purchase transaction, the Seller will reimburse Artbay for any amounts paid to a Collector pursuant to such Buyer Guarantee.
Exclusive Remedy. The Collector acknowledges and agrees that cancellation of the sale and refund of the purchase price subject to the above terms and conditions will be the Collector’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 Artbay Parties or the Seller will be liable to the Collector 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 Artbay. Except with respect to property sold by Artbay itself, we make no representations or warranties of any kind (express or implied) with regard to any property.
22. DISPUTE RESOLUTION
As we are not the agent of any Collector or Seller for any purpose, the Artbay Parties have no duty to resolve, and will not act as the agent of any Collector or seller in connection with resolving any disputes. However, we may, but are not obligated to, provide intermediary services between Collectors and sellers in connection with customer service or dispute resolution matters. In the event we elect in our sole discretion to provide intermediary services, we will attempt to help Collector and Seller resolve disputes in good faith and based solely on our interpretation of our policies, in our sole discretion; we will not make judgments regarding legal issues or claims. Our decision is final and binding on all parties and cannot be appealed, challenged or reversed, including, without limitation, the applicability or resolution of any matter related to any Buyer Guarantee or Seller Guarantee. Collector and Seller agree to cooperate with us in a timely manner in any such investigations that we may choose to conduct, as permitted by applicable law. Communication for orders and transactions should be performed on the Services. Users who engage and communicate off of the Services will not be protected by these Conditions.
23. GENERAL RELEASE
The artbay parties do not endorse or control and are not responsible for the conduct, performance or non-performance (whether online or offline) of any collectors 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 collectors 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 artbay 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.
24. 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, any warranties as to the anticipated selling price of any property or that an item will sell, and any warranties that any collectors or sellers will complete any transactions or otherwise perform as promised, all of which are warranties that the artbay parties expressly disclaim to the fullest extent permitted by applicable law. In no event will any of the artbay 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.
25. LIMITATION OF LIABILITY
To the fullest extent allowed by applicable law, under no circumstances and under no legal theory (including, without limitation, tort, contract, strict liability, or otherwise) shall any of the artbay parties be liable to any collector or seller or to any other person for (I) any indirect, special, incidental, reliance, punitive or consequential damages of any kind, including damages for lost profits, business interruption, loss of data, loss of goodwill, work stoppage, accuracy of results, or computer failure or malfunction, (ii) any substitute goods, services or technology, (iii) any amount, in the aggregate, in excess of the greater of (a) one-thousand (aed1,000) dirhams or (b) the amounts paid and/or payable by you to artbay as commission pursuant to section 11 in connection with the services in the two (2) month period preceding this applicable claim or (iv) any matter beyond our reasonable control, in connection with these conditions, the services, the use of or inability to use the services, any transactions entered into through the services, or any property. Without limiting the foregoing, we will not be liable to any collector or seller or any third party for any damages or losses of any kind resulting directly or indirectly from any termination or suspension of your access to the services by us, including, but not limited to, any loss of or inability to do business or to provide or use any product or service. Some states do not allow the exclusion or limitation of incidental or consequential or certain other damages, so the above limitation and exclusions may not apply to you.
26. EU AND UK CANCELLATION RIGHTS
Pursuant to the European Union (“EU”) Directive on Consumer Rights (2011/83/EC) and the UK Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, a buyer in the EU or the UK (an “EU or UK Buyer”) who purchases a lot from a trader in a timed/online-only auction or via Buy Now, Make Offer, or Inquiry Offer 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 or UK Buyer that exercises this cancellation right must return the lot, and the Seller will refund the EU or UK Buyer for payments already made for the purchase and applicable shipping of the lot. The EU or UK Buyer will be required to bear the cost of returning any lot to the Seller. In addition, where Artbay is not the Seller of the lot but where the EU or UK Buyer has paid shipping charges directly to Artbay or to a third party shipping provider, the EU or UK Buyer will not be entitled to a refund of such shipping charges when exercising their right to cancel the sale contract. To exercise this cancellation right, the EU or UK Buyer must inform the Seller through a clear statement (i.e., a letter sent by post or e-mail). This cancellation right is not applicable to EU or UK Buyers who participate in live/public auctions using the Services.
27. 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 Emirate of Abu Dhabi and, to the extent applicable, the laws of the United Arab Emirates, 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 civil or federal court located in the Emirate of Abu Dhabi- U.A.E., whether or not such dispute involves 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 the Emirate of Abu Dhabi- U.A.E., 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 these Conditions 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 these Conditions, the Services, or the listing, marketing, offer or sale of property through the Services.
28. 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/or our website or when we notify you by email or some other means (to the email address or other contact information that we have for you in our records), and you agree to review these Conditions carefully and inform yourself of all applicable changes when listing property and before buying or bidding on any property. If you don’t agree with the updated Conditions, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. By continuing to use the Services in any way after any changes to these Conditions become effective, you agree to be bound by such changes and the updated Conditions. 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. 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 changes made by us to this Agreement, including, but not limited to, any loss of or inability to do business or to provide or use any product or service. Please save and/or print a copy of these Conditions for your records. Except for changes by us as described here, no other amendment or modification of these Conditions will be effective unless in writing and signed by both you and us.
29. 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 Artbay 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.
30. COMPLIANCE WITH LAW AND THIRD PARTY RIGHTS
The Services may be used only for lawful purposes and in a lawful manner. You agree that your use of the Services and all of your acts and performance in connection with these Conditions, including but not limited to your listing, marketing, offer, and sale of all items, and your making available any images, information, or other materials on or in connection with the Services, must: (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; (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; (iii) not be defamatory or libelous; and (iv) not be counterfeit, illegal, stolen, or fraudulent. 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.
31. MISCELLANEOUS
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 any Seller at a live event where the Services are used for bidding or otherwise in connection with the Services, 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 Artbay 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. We may transfer, assign, or delegate these Conditions and our rights and obligations without 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. 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 these Conditions, nothing stated in or implied from these Conditions will give any party other than you or us any legal or equitable right, remedy or claim under or with respect to these Conditions. 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. Sections in these Conditions relating to obligations which have accrued or have application beyond the term of these Conditions, including, without limitation, those relating to intellectual property, indemnification, warranty disclaimers and limitation of liability, and any provision required to interpret and enforce the parties’ rights and obligations under these Conditions to the extent required for the full observation and performance of these Conditions, shall survive any termination or expiration of these Conditions or your use of the Services. In no event will Artbay be liable for any failure or delay in performing an obligation under these Conditions that is due to any causes beyond its reasonable control, including without limitation, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, or explosion.
32. Artbay Listing Requirements
Collector/Curator/Artist trust is critical to the Artbay experience. We require all sellers to list works accurately and thoroughly. If you do not list a work accurately, you may be required to accept a return (in the case of a work sold via Buy Now, Make Offer, and Make Offer in Inquiries). We may also take further action on your account, including suspension for up to 30 days or termination– regardless of whether a work is listed for inquiry or buy now and make offer.
The most important things to keep in mind when adding listings are:
• All artworks listed for purchase must be available, and you must have immediate access to them, regardless of purchase type.
• You must have the right to list and sell your listings (typically meaning an artist, estate, or consignor has given you the right to sell a work).
• You must be able to guarantee the authenticity of the works you are selling. We understand there are sometimes legitimate questions related to attribution for some artists. In this case, use the most appropriate artist attribution modifier.
• You must clearly state the artist’s involvement in the work (e.g. Merchandise by artists for whom this is an important part of their practice must be listed as “Ephemera or Merchandise.”
• Do not list gallery-issued invoices as certificates of authenticity).
• All works must meet our listing requirements.
• Artworks made using restricted materials may not be listed on Artbay.
• Artworks that violate the law may not be listed on Artbay.
Although standards may vary and good faith mistakes will happen, Artbay has established a firm set of guidelines to reduce confusion and ensure collectors can find what they’re looking for. Typically we will notify you of any incoming complaints, and we will send you a warning should the complaints continue, depending on the severity of the issue (however, it is within our sole discretion to determine whether to take action with regards to your account). Examples of issues that may result in immediate action against your account:
• Fake, plagiarized, stolen, or “hedged” listings (meaning you have listed for sale a work you do not currently have access to or the rights to sell in order to create demand)
• Selling works that are misrepresented, especially in regards to artist involvement, attribution or rarity
• Repeatedly listing works that do not meet Artbay’s listing requirements
Artbay is here to support you. We may reach out to you asking you to edit your listings, or to inform you that we have unpublished one of your works, and we encourage you to reach out to our Support team at admin@artbay.gallery with any technical questions or speak with your Account Executive if you have any questions about how to list your works.
33. ARTBAY POLICY ON RESTRICTED MATERIALS
We understand that artworks often use provocative, offensive or illicit materials to make a statement. Our mission is to build a marketplace that supports the vast diversity of artistic expression. However, in order to comply with state and country laws, there are some materials and items that are not allowed to be listed.
What materials are not allowed?
• Drugs, alcohol, or tobacco products
• Food products
• Explosives, guns, or other weapons
• Hazardous or toxic materials
• Currency, lottery tickets, or gambling equipment
• Third-party identification documents or sensitive personal or financial information
• Bodily fluids or body parts
• Live animals
• Property containing material from plant or animal species protected as endangered or threatened under applicable local or national laws of the United Arab Emirates or any other jurisdiction.
This list is not exhaustive and is subject to change. Please reach out if you have any questions about whether a work is prohibited from being listed.
If we identify a work that contains restricted materials, we may remove it, and your account may be subject to additional action, such as suspension from use of selling options, or in severe cases, termination.
34. CONTACTING ARTBAY
If you have any questions about these Conditions, please email us at: admin@artbay.gallery.