Conditions of Sale
Sotheby's SA, Geneva Branch; identification number: CH-660-0945988-7
Address: Rue François-Diday 2, 1204 Genève, Switzerland
Phone: +41 22 908 48 00
Fax: +41 22 908 48 01
Email: geneva@sothebys.com
Opening Hours: Monday-Friday | 9:00 AM - 6:00 PM CET
GUIDE TO BUYING IN AN ONLINE ONLY AUCTION
The following guidance is intended to give you useful and legally relevant information on how to buy in an Online Only Auction. We recommend that you read the guidance below carefully in order to familiarize yourself with the way that the Online Only Platform works before you start to participate in an Online Only Auction. It is also important that you read the Conditions of Business for Buyers (Online Only) which are set out below and which will govern your rights and obligations in connection with the Online Only Auction. Please note that Sotheby's acts for the Seller; you should refer in particular to Conditions 3 and 4 of the Conditions of Business for Buyers (Online Only). Terms defined in this Guide shall have the same meaning as in the Conditions of Business for Buyers (Online Only) unless the context otherwise requires.
1. REGISTER A VERIFIED ACCOUNT WITH SOTHEBY'S
In order to be eligible to participate in an Online Only Auction, you must have registered, and maintain, a Verified Account. The registration process requires you to enter your debit card or credit card information, your address and to confirm that you have read and accept our Conditions of Business for Buyers, the Authenticity Guarantee and this Guide to Buying in an Online Only Auction. In order to bid in an Online Only Auction, you must be registered as a Verified Accountholder no later than 24 hours prior to the closing of the first Lot in the relevant Online Only Auction in which you wish to bid (you will also be required to provide certain information to Sotheby's as part of the application process). Further details about how to become a Verified Accountholder are set out in Condition 5 of the Conditions of Business for Buyers (Online Only).
Once you have completed the registration process to become a Verified Accountholder, you can sign into the applicable Online Only Auction using your own username and password. To log in to your Verified Account, please follow the login instructions provided at:
https://www.sothebys.com/en/registration/login-to-sothebys.html
2. BROWSE THE LOTS FOR SALE IN THE ONLINE ONLY AUCTION
Once the relevant Online Only Auction has opened, the Online Sale Information regarding each Lot for sale in the Online Only Auction is available for you to review.
Pre-sale estimates
As indicated in the Conditions of Business for Buyers (Online Only), the Online Sale Information for each Lot includes pre-sale estimates which are provided by Sotheby's as a guide for prospective Bidders to assist them with determining the appropriate amount to bid for a Lot. In our opinion, any bid for an amount which is between the high pre-sale estimate and the low pre-sale estimate stated in the Online Sale Information for the Lot would offer a chance of success. Having said that, it is important you appreciate that Lots can realize prices which are above or below the pre-sale estimates. It is advisable to check the pre-sale estimates prior to submission of a bid. Please note that the pre-sale estimates which are stated in the Online Sale Information do not include any applicable buyer's premium, any applicable VAT (or any amount in lieu of VAT) or any applicable ARR.
Condition of Lots
The Online Sale Information includes the online catalogue description of the Lot; any online condition report provided in relation to the Lot by Sotheby's solely as a convenience (and the online images of the Lot shall be deemed to form part of any such condition report); any other information relating to the Lot or the conduct of the Online Only Auction which is published on the Online Only Platform (including this Guide to Buying in an Online Only Auction).
All Lots are offered for sale in the condition which they are in at the time of sale in an Online Only Auction. Any reference to condition in the Online Sale Information will not amount to a full description of the condition and the absence of any reference to the condition of a Lot in the online catalogue description does not imply that the Lot is free from faults or imperfections. It is important that you appreciate that you will not have an opportunity to inspect the condition of a Lot prior to submitting a bid in respect of such Lot. Please refer to Condition 3 of the Conditions of Business for Buyers (Online Only) for further information regarding the basis upon which your bid for a Lot is submitted.
Provenance
In certain circumstances, Sotheby's may publish in the online catalogue description for a Lot the history of ownership of a work of art if such information contributes to scholarship or is otherwise well known and assists in distinguishing the work of art. However, the identity of the seller or previous owners may not be disclosed for a variety of reasons. For example, such information may be excluded to accommodate a seller's request for confidentiality or because the identity of prior owners is unknown given the age of the work of art.
Bidding practices
In situations where a person who is allowed to bid on a Lot has a direct or indirect interest in such Lot, such as the beneficiary or executor of an estate selling the Lot, a joint owner of the Lot, or a party providing or participating in a guarantee of the Lot, Sotheby's will notify you by email and publish a notification in the Online Sale Information that interested parties may bid on the Lot. In certain instances, interested parties may have knowledge of the Reserves.
Sotheby's employees may bid only if the employee does not know the Reserve and fully complies with Sotheby's internal rules governing employee bidding.
Information regarding shipping and delivery
The Online Sale Information includes a shipping costs calculator which has been developed by Sotheby's to enable you to estimate the amount it will cost you to have the Lot shipped to your delivery address (inclusive of VAT, associated packing and transit insurance costs) in the event that you are the successful Bidder so that you are able to account for this cost in your assessment of the appropriate amount to bid for a Lot. Please note that the shipping cost which is generated by the shipping costs calculator may differ to the actual amount of the Buyer's Shipping Costs which is quoted to you in the Buyer's Shipping Quote.
Sotheby's is always happy to discuss any Lot in which you are interested. Further information requests can be submitted via the 'Request Info' button which appears at Lot level on the Online Only Platform.
3. SUBMISSION OF A BID FOR A LOT IN AN ONLINE ONLY AUCTION
An Online Only Auction can be fast moving. Competitive bidding can often escalate very quickly. Once you have set up a Verified Account, you will be able to submit a bid for a Lot by entering your maximum bid and clicking the 'Leave Bid' button which appears at Lot level on the Online Only Platform. If you haven't already registered as a Verified Accountholder, you will be prompted to do so at that point. You will then be asked to review and confirm your maximum bid. As soon as the 'Leave Bid' button or the 'Place Bid' is clicked, your bid is submitted. You accept and agree that a bid is submitted using the 'Leave Bid' or the 'Place Bid' button.
Bids can be submitted through the Online Only Platform from the start of the Online Only Auction until the bidding period displayed for the relevant Lot closes. Enter your maximum bid (being the highest price you are willing to pay on the Lot). The Online Only Platform will then place incremental bids on your behalf up to your maximum bid for as long as you are the highest bidder. Sotheby's uses pre-determined bidding increments. Please refer to the bidding increments link which appears at Lot level on the Online Only Platform. In cases where two equivalent maximum bids are submitted, the first bid received will take priority.
4. MONITOR YOUR BIDS
If you are outbid at any time you will receive an email notification informing you accordingly and the email notification will provide a link to follow to increase your bid. We encourage you to monitor the bids on Lots throughout the duration of the Online Only Auction to ensure your status as the highest bidder up until the close of the Online Only Auction.
5. CLOSING THE ONLINE ONLY AUCTION
An end time is displayed for each Lot at Lot level on the Online Only Platform. Lots will close at the time stated at Lot level on the Online Only Platform unless a bid is placed within 1 minute of a Lot's scheduled end time. If this occurs, Sotheby's will extend the sale of that Lot by 5 minutes from the time of the last bid. The extension of any Lot's closing time does not affect the closing time of the following Lots. This may result in Lots closing out of numerical order.
6. HOW TO PAY FOR YOUR LOT
If you are a successful Buyer of a Lot, Sotheby's will email you the Buyer's Invoice for the total amount due by you (together with payment instructions) as soon as reasonably practicable after the final Lot in the relevant Online Only Auction closes. Payment from the invoiced party is due in full by the payment date stated in the Buyer's Invoice. Please note that we reserve the right to decline payments received from anyone other than the buyer of record and that clearance of such payments will be required. Please contact our Post Sale Services Department if you have any questions concerning clearance. Contact details for the Post Sale Services Department are as follows:
Email: geneva@sothebys.com;
Telephone: +41(0)229084800.
Subject to the limitations and requirements in the Conditions of Business for Buyers (Online Only), Sotheby's accepts the following forms of payment: Swiss Franc (CHF) wire transfer, Swiss Franc (CHF) cheque, Swiss Franc (CHF) cash (in person at our Sotheby's Geneva premises only), Swiss debit card. Payment may also be made by Visa, MasterCard and non-Swiss debit cards subject to a 1.2% surcharge and by American Express and CUP (in person at our Sotheby's Geneva premises) subject to a 1.75% surcharge. Please refer to Condition 8 of the Conditions of Business for Buyers (Online Only) for further details regarding payment of a purchased Lot.
A Buyer's Premium is payable by the successful Bidder on a Lot in an Online Only Auction. The Buyer's Premium is added to the Hammer Price and is included as part of the total Purchase Price payable by the successful Bidder. In an Online Only Auction conducted by Sotheby's in Geneva, the Buyer's Premium rate is as follows: 25% of the Hammer Price up to and including CHF 300,000, 20% of any amount in excess of CHF 300,000 up to and including CHF 4,000,000 and 12.9% of any amount in excess of CHF 4,000,000.
Sotheby's will also email you the Buyer's Shipping Quote in respect of the Buyer's Shipping Costs payable by the Buyer in consideration of Sotheby's delivery services for the purchased Lot at which point Sotheby's will ask you to confirm your delivery address. In the event that you are eligible for a VAT rebate based on your confirmed delivery address, Sotheby's may reissue the Buyer's Invoice.
Provided that the Buyer's Invoice has been settled in full by the payment date stated in the Buyer's Invoice and the Buyer's Shipping Quote has been settled in full by the payment date stated in the Buyer's Shipping Quote, any financial release of the property has been completed and any requisite export licence or certificates has been provided to Sotheby's, Sotheby's will ship the purchased property to your delivery address no later than thirty (30) days from the closing date of the relevant Online Only Auction.
If you are a successful Buyer of a Lot, you will also be required to pay where applicable: Sales and/or Value Added Tax (VAT), import tax, customs duty, and any local clearance fees applicable for your country e.g. US Merchandise Processing Fee, Artist's Resale Right, Buyer's Shipping Costs (which include the transit insurance fee). Please refer to the Conditions of Business for Buyers (Online Only) for more information.
Please note the following information regarding Sotheby's accepted payment policies:
• It is against Sotheby's general policy to accept single or multiple related payments in the form of cash or cash equivalents in excess of the local currency equivalent of US$10,000.
• It is Sotheby's policy to request any new clients or new buyers preferring to make Swiss Franc (CHF) cash payment to provide: proof of identity (by providing some form of government issued identification containing a photograph, such as a passport, identity card or driver's licence) and confirmation of permanent address. Thank you for your co-operation.
• Cheques: should be made payable to Sotheby's. Although personal and company cheques drawn in Swiss Francs (CHF) on Swiss banks are accepted, you are advised that property will not be released until such cheques have cleared unless you have a pre-arranged Cheque Acceptance Facility.
• Bank transfers: our bank account details are shown on our invoices. Please include your name, Sotheby's account number and invoice number with your instructions to your bank.
• Card payments below SWISS Franc (CHF) 30,000 (excluding CUP), can be made remotely by completing our Absentee Card Payment Form. For further details please contact the Post Sale Services Department on +41(0)229084800. • Payments by Swiss Franc (CHF) Cash and CUP can only be accepted at Sotheby's premises at 2, Rue Francois-Diday, 1204 Geneva, Switzerland.
• We reserve the right to seek identification of the source of funds received.
7. FURTHER INFORMATION REGARDING SHIPPING, EXPORT OF PROPERTY AND RELATED MATTERS
All shipments should be unpacked and checked on delivery and any discrepancies notified immediately to the party identified in your quotation and/or the accompanying documentation.
Export: The export of any lot from Switzerland or import into any other country may be subject to one or more export or import licences being granted. It is the buyer's responsibility to obtain any relevant export or import licence. The denial of any licence required or delay in obtaining such licence cannot justify the cancellation of the sale or any delay in making payment of the total amount due. Sotheby's, upon request and for an administrative fee, may apply for a licence to export your lot(s) outside of Switzerland. Sotheby's recommends that you retain all import and export papers, including licences, as in certain countries you may be required to produce them to governmental authorities. Please note that Sotheby's is unable to arrange delivery to those locations which are specified as excluded zones in the shipping costs calculator which is available on the Online Only Platform (each an "Unavailable Destination"). In the event that you request delivery of a Lot to an Unavailable Destination, Sotheby's reserves the right to require you to collect the Lot from the Sotheby's premises at 2, rue Francois-Diday, 1204 Geneva, Switzerland or to arrange delivery of the Lot by a third party carrier.
Endangered Species: Items made of or incorporating plant or animal material, such as coral, crocodile, ivory, whalebone, tortoiseshell, etc., irrespective of age or value, may require a licence or certificate prior to exportation and require additional licences or certificates upon importation into any country outside Switzerland. Please note that the ability to obtain an export licence or certificate does not ensure the ability to obtain an import licence or certificate in another country, and vice versa. For example, it is illegal to import African elephant ivory into the United States and there are other restrictions on the importation of ivory into the US under certain US regulations which are designed to protect wildlife conservation. ? Sotheby's suggests that buyers check with their own government regarding wildlife import requirements prior to placing a bid. It is the buyer's responsibility to obtain any export or import licences and/or certificates as well as any other required documentation (please refer to Condition 10 of the Conditions of Business for Buyers (Online Only)). Please note that Sotheby's is not able to assist buyers with the shipment of any Lots containing ivory and/or other restricted materials into the US. A buyer's inability to export or import these Lots cannot justify a delay in payment or a sale's cancellation.
US Economic Sanctions: The United States maintains economic and trade sanctions against targeted foreign countries, groups and organizations. There may be restrictions on the import into the United States of certain items originating in sanctioned countries, including Burma, Cuba, Iran, North Korea and Sudan. The purchaser's inability to import any item into the US or any other country as a result of these or other restrictions shall not justify cancellation or rescission of the sale or any delay in payment. Please check with the specialist department if you are uncertain as to whether a Lot is subject to these import restrictions, or any other restrictions on importation or exportation.
VAT AND OTHER TAX INFORMATION FOR BUYERS
Value Added Tax (VAT) will be payable at a rate of 7.7% on the hammer price, buyer's premium and any applicable supplementary charges. Buyers domiciled outside Switzerland are entitled to a refund of VAT after receipt by Sotheby's of an official Swiss export declaration for the objects purchased, duly stamped by Swiss customs. However, buyers must export their purchased from Switzerland no later than thirty (30) days after collection. Buyers from outside of Switzerland should note that local sales taxes or use taxes may become payable upon import of items following purchase (for example, the Use Tax payable on import of purchased items to certain states of the USA). Buyers should obtain their own advice in this regard. Sotheby's is registered to collect sales tax in the states of New York and California, USA. In the event that Sotheby's ships items for a purchaser to a destination within New York State , USA or California State, USA, Sotheby's is obliged to collect the respective state's sales or use tax on the total purchase price and shipping costs, including insurance, of such items, regardless of the country in which the purchaser resides or is a citizen. Where the purchaser has provided Sotheby's with a valid Resale Exemption Certificate prior to the release of the property, sales and use tax will not be charged. Clients to whom this tax might apply are advised to contact the Post Sale Services Department on +41(0)229084800 for further information.
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SOTHEBY'S S.A.: CONDITIONS OF BUSINESS
THE CONDITIONS SET OUT BELOW AND ALL OTHER TERMS, CONDITIONS AND NOTICES SET OUT ON THE ONLINE ONLY PLATFORM INCLUDING, BUT NOT LIMITED TO, THE ONLINE SALE INFORMATION (TOGETHER THE 'CONDITIONS OF BUSINESS') FORM THE TERMS ON WHICH SOTHEBY'S CONTRACTS WITH ACTUAL AND PROSPECTIVE SELLERS AND BUYERS WHICH PARTICIPATE IN AN ONLINE ONLY AUCTION HOSTED BY SOTHEBY'S AND ITS PARTNERS ON THE ONLINE ONLY PLATFORM.
THE CONDITIONS OF BUSINESS APPLY TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN YOU AND US REGARDING THE SALE, PURCHASE OR HOLDING BY US OF PROPERTY. THEY ARE THEREFORE VERY IMPORTANT AND YOU SHOULD READ THEM CAREFULLY.
YOU AGREE THAT ANY FUTURE DEALINGS WHICH YOU MAY HAVE WITH SOTHEBY'S SHALL BE ON THE CONDITIONS OF BUSINESS CURRENT AT THAT PARTICULAR TIME.
NOTICE TO BUYERS AND SELLERS
In the context of an online only auction, Sotheby's acts as agent for the seller of the lot. Sotheby's therefore provides certain services, including, but not limited to, the process of concluding the sale contract between the seller and the buyer. You should note that Sotheby's generally acts as agent for the seller. Any concluded contract of sale is made directly between the seller and the buyer.
The online sale information will identify the seller of the lot as an online consumer (and therefore, by inference, not an online trader) for the purposes of consumer protection in certain jurisdictions. This is important because if the seller is an online trader and the buyer is an online consumer in certain jurisdictions, the buyer shall have the right to cancel the purchase of a lot (in accordance with the procedure set out at Condition 14 of these Conditions of Business. In circumstances where the seller is an online consumer, the right to cancel the purchase of a lot does not apply however the buyer may have the right to cancel certain services provided by Sotheby's in connection with the purchase of the lot (in accordance with the procedure set out at Condition 14 of these Conditions of Business.
Sotheby's is dependent on the seller for much of the relevant factual material pertaining to items offered for sale. Sotheby's cannot and does not undertake full due diligence on every item sold. Buyers therefore have a responsibility to carry out their own inspection and investigations to satisfy themselves as to the nature of the items which they are interested in buying. We specifically draw to the attention of all potential buyers to Conditions 5 and 6 which limit the extent to which Sotheby's and the seller may be liable. We also specifically draw to the attention of all sellers to Conditions 16 and 18 which set out the basis of the relationship between Sotheby's and the seller and limit the extent to which Sotheby's may be liable to the seller.
Actual and prospective buyers and sellers are bound by all Conditions of Business. However, for ease of reference, we have divided the Conditions set out below into sections. Section A explains certain terms that are used regularly throughout the Conditions, Section B sets out those Conditions which particularly relate to buyers, Section C sets out those Conditions which particularly relate to sellers, and Section D sets out those Conditions which relate to both buyers and sellers. Where possible in these Conditions of Business, Sotheby's is referred to as 'we', 'us' and 'our', and actual and prospective buyers and sellers are, as applicable, referred to as 'you' and 'your'.
A. EXPLANATION AND DEFINITION OF CERTAIN TERMS USED IN THE CONDITIONS OF BUSINESS
1. Definitions: In these Conditions of Business, terms placed in inverted commas shall have the meaning set out below:
(a) 'bidder' is any person considering, making or attempting to make a bid in an online only auction and includes buyers;
(b) 'buyer' is the person who makes the highest bid for a lot in an online only auction via the online only platform;
(c) 'buyer's premium' means the commission on the 'hammer price' payable to Sotheby's by a 'buyer' at the rates stated on the 'online only platform' in relation to the relevant 'online only auction' together with any applicable Swiss Value Added Tax (VAT) at the prevailing rate;
(d) 'buyer's shipping costs' are any packing, handling and shipping costs and charges (including any costs covering transit insurance) payable by the buyer to Sotheby's for provision of delivery services of the purchased lot to the buyer;
(e) 'buyer's shipping quote' is the shipping quote covering the buyer's shipping costs;
(f) 'CITES' means Convention on International Trade in Endangered Species;
(g) 'counterfeit' is as defined in Sotheby's Authenticty Guarantee (set out at Condition 3 below);
(h) 'expenses' in relation to the sale of any lot means Sotheby's' charges and expenses including but not limited to legal expenses, charges and expenses for assumption of liability for loss or damage, any customs duties, advertising, packing or shipping costs, reproduction rights' fees, taxes, levies, costs of testing, searches or enquiries relating to any lot, or costs of collection from a defaulting 'buyer', including any applicable VAT or amount in lieu of VAT required on any supplementary charges and assumption of liability for loss or damage;
(i) 'hammer price' is the highest bid accepted from a bidder for a lot during an online only auction or, in the case of a post-auction sale, the agreed parice, in both cases excluding applicable 'buyer's premium', any applicable taxes and any 'expenses';
(j) 'lot' is an item to be offered for sale at an online only auction on the online only platform (and "lots" shall be construed accordingly)
(k) 'low pre-sale estimate' means the low estimate of Sotheby's' latest low and high pre-sale estimates of the value of the property, whether or not communicated to the 'seller';
(l) 'mid pre-sale estimate' means the average of 'Sotheby's' latest low and high pre-sale estimates of the value of the property, whether or not communicated to the 'seller';
(m) 'net sale proceeds' means the 'hammer price' of the lot sold to the extent received by 'Sotheby's' in cleared funds, less 'seller's commission' and 'expenses';
(n) 'online consumer' is an individual located in the European Union who purchases a lot and who is acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession;
(o) 'online only auction' is the sale of a lot which is conducted solely by means of the online only platform provided by Sotheby's and our partners;
(p) 'online only platform' is the online only sale platform and associated technical services provided by Sotheby's and our partners which is accessible solely by online means and which enables buyers to bid for and buy lots in a time based auction;
(q) 'online sale information' is the lot information including, but not limited to, any pre-sale estimates; any information regarding provenance; the online catalogue description of the lot; any condition report provided by Sotheby's in relation to the lot (with any such condition report being deemed to include the online images of the lot); any other information relating to the lot or the conduct of the online only auction published on the online only platform (including, but not limited to, the Guide to Buying in an Online Only Auction); any on-screen notices relating to the online only auction;
(r) 'online sale cancellation period' is the period of fourteen (14) days starting on the day after the online consumer (or a person, other than the carrier, identified by the online consumer) takes physical possession of the lot;
(s) ''online services cancellation period' is the period of fourteen (14) days starting from the day of conclusion of the contract which relates to provision of the delivery services by Sotheby's in favour of the online consumer;
(t) 'online trader' is a person who is the seller of a lot and is acting for purposes relating to that person's trade, business, craft or profession;
(u) 'reserve' is the (confidential) minimum 'hammer price' at which the 'seller' has agreed to sell a lot;
(v) 'seller' means the owner or the owner's agent or the person in possession of the property consigned. If there are multiple owners or agents or persons in possession, each shall assume, jointly and severally, all obligations, liabilities, representations, warranties and indemnities as set forth in these Conditions of Business;
(w) 'seller's commission' means the commission payable to 'Sotheby's' by a 'seller' at the rates applicable at the start of the online only auction in which the relevant item of property is included or at the date of loss or damage to the property (if applicable), together with any VAT required by law or amount in lieu thereof;
(x) 'Sotheby's' means Sotheby's SA Geneva Branch, 2 rue François-Diday, 1204 Geneva, Switzerland;
(y) 'Sotheby's affiliated company' means: Sotheby's in the USA, a company registered in the USA; any company (other than 'Sotheby's') being a subsidiary of Sotheby's in the USA or being otherwise controlled by Sotheby's in the USA; and Sotheby's Diamonds S.A., a company registered in Geneva (Switzerland) and its subsidiaries;
(z) 'standard online delivery costs' means the sums charged for delivery of the lot to a buyer using the standard online delivery service for the online only auction;
(aa) 'total amount due' means the 'hammer price' in respect of the lot sold, together with the 'buyer's premium', and any charges, fees, interest, taxes and 'expenses' due from a 'buyer' or defaulting 'buyer';
(bb) 'verified account' refers to the category of Sotheby's account which is required to enable the account holder to (i) register for a sale; and (ii) to bid in an auction (including, but not limited to, an online only auction);
(cc) 'verified accountholder' means an individual or entity who/which maintains a verified account.
B. CONDITIONS MAINLY CONCERNING BUYERS
2. Sotheby's capacity: 'Sotheby's' sells as agent for the 'seller'. Where 'Sotheby's' sells as agent, any sale will result in a contract made directly between the 'seller' and the 'buyer'.
SOTHEBY'S OBLIGATIONS TO BUYERS
3. Our guarantee to you in respect of counterfeit lots: if 'Sotheby's' sells an item which subsequently is shown to be a "counterfeit", subject to the terms below 'Sotheby's' will set aside the sale and refund to the 'buyer' the total amount paid by the 'buyer' to 'Sotheby's' for the item, in the currency of the original sale.
FOR THESE PURPOSES, "COUNTERFEIT" MEANS A LOT THAT IN 'SOTHEBY'S' REASONABLE OPINION IS AN IMITATION CREATED TO DECEIVE AS TO AUTHORSHIP, ORIGIN, DATE, AGE, PERIOD, CULTURE OR SOURCE, WHERE THE CORRECT DESCRIPTION OF SUCH MATTERS IS NOT REFLECTED BY THE ONLINE CATALOGUE DESCRIPTION OF THE LOT WHICH FORMS PART OF THE ONLINE SALE INFORMATION (TAKING INTO ACCOUNT ANY GLOSSARY OF TERMS). NO LOT SHALL BE CONSIDERED A COUNTERFEIT BY REASON ONLY OF ANY DAMAGE AND/OR RESTORATION AND/OR MODIFICATION WORK OF ANY KIND (INCLUDING REPAINTING OR OVER-PAINTING).
Please note that this Guarantee does not apply if either:-
(i) the online catalogue description was in accordance with the generally accepted opinion(s) of scholar(s) and expert(s) at the date of sale, or the online catalogue description indicated that there was a conflict of such opinions; or
(ii) the only method of establishing at the date of the sale that the item was a counterfeit would have been by means of processes not then generally available or accepted, unreasonably expensive or impractical to use; or likely to have caused damage to the lot or likely (in 'Sotheby's' reasonable opinion) to have caused loss of value to the lot; or
(iii) there has been no material loss in value of the lot from its value had it been in accordance with its description.
This Guarantee is provided for a period of five (5) years after the closing date of the relevant online only auction, is solely for the benefit of the 'buyer' and may not be transferred to any third party. To be able to claim under this Guarantee, the 'buyer' must:-
(i) notify 'Sotheby's' in writing within three (3) months of receiving any information that causes the 'buyer' to question the authenticity or attribution of the item, specifying the lot number, the closing date of the relevant online only auction in which it was purchased and the reasons why it is thought to be counterfeit; and
(ii) return the item to 'Sotheby's' in the same condition as at the date of sale to the 'buyer' and be able to transfer good title in the item, free from any third party claims arising after the date of the sale.
'Sotheby's' has discretion to waive any of the above requirements. 'Sotheby's' may require the 'buyer' to obtain at the 'buyer's' cost the reports of two independent and recognised experts in the field, mutually acceptable to 'Sotheby's' and the 'buyer'. 'Sotheby's' shall not be bound by any reports produced by the 'buyer', and reserves the right to seek additional expert advice at its own expense. In the event 'Sotheby's' decides to rescind the sale under this Guarantee, it may refund to the 'buyer' the reasonable costs of up to two mutually approved independent expert reports.
3. bis Our guarantee to you in respect of counterfeit lots: if Sotheby's sells any gemstone or pearls which the 'buyer' subsequently shows to 'Sotheby's' reasonable satisfaction not to be genuine or of natural origin, subject to the terms below 'Sotheby's' will set aside the sale and refund to the 'buyer' the total amount paid by the 'buyer' to 'Sotheby's' for such gemstones or pearls, in the currency of the original sale.
The Guarantee is provided for a period of twenty one (21) days after the closing date of the relevant online only auction, is solely for the benefit of the 'buyer' and may not be transferred to any third party. To be able to claim under this Guarantee, the 'buyer' must:-
(i) notify 'Sotheby's' in writing within such 21 day period of the reasons for not believing the gemstones or pearls to be genuine or of natural origin, specifying the lot number, the closing date of the online only auction in which it was purchased; and
(ii) return the item to 'Sotheby's' in the same condition as at the date of sale to the 'buyer' and be able to transfer good title in the item, free from any third party claims arising after the date of the sale.
'Sotheby's' has discretion to waive any of the above requirements. 'Sotheby's' may require the 'buyer' to obtain at the 'buyer's' cost the reports of two independent and recognised experts in the field, mutually acceptable to 'Sotheby's' and the 'buyer'. 'Sotheby's' shall not be bound by any reports produced by the 'buyer', and reserves the right to seek additional expert advice at its own expense. In the event 'Sotheby's' decides to rescind the sale under this Guarantee, it may refund to the 'buyer' the reasonable costs of up to two mutually approved independent expert reports.
DUTIES OF BIDDERS AND BUYERS IN RESPECT OF ITEMS FOR SALE
4. (a) Sotheby's knowledge in relation to each lot is dependent on information provided to it by the seller, and Sotheby's is not able to and does not carry out exhaustive due diligence on each lot. Bidders acknowledge this fact and accept responsibility for carrying out investigations to satisfy themselves as to the lots in which they may be interested.
(b) Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All lots are offered for sale in the condition they are in at the time of sale in the relevant online only auction. Any reference to condition in the online sale information will not amount to a full description of condition and the absence of any reference to the condition of a lot in the online catalogue description does not imply that the lot is free from faults or imperfections. Condition reports may be available to assist bidders with assessing the condition of a lot and are for guidance only. The online images of the lot form part of the condition report provided by Sotheby's. Certain online images of the lot may not accurately reflect the actual condition of the lot. In particular, the online images may represent colours and shades which are different to the lot's actual colour and shades. The online sale information and/or any condition report relating to the lot may make reference to particular imperfections of the lot but you should note that the lot may have other faults not expressly referred to in the condition report for the Lot or shown in the online images of the lot. The condition report may not refer to all faults, restoration, alteration or adaptation because Sotheby's is not a professional conservator or restorer but rather the condition report is a statement of opinion genuinely held by Sotheby's. For that reason, Sotheby's condition report is not an alternative to taking your own professional advice regarding the condition of the lot. As a potential bidder, you acknowledge and accept that you shall not be given an opportunity to inspect the property prior to bidding in the online only auction. Please note that all electrical and mechanical goods are sold on the basis of their artistic and decorative value only, and should not be assumed to be operative. It is essential that prior to any intended use, the electrical system for any lot is checked and approved by a qualified electrician.
(c) The online sale information provided to bidders in respect of a lot, and any other estimate, whether written or oral, or other report, commentary or valuation, is not a representation of fact but rather is a statement of opinion genuinely held by Sotheby's. Any estimate may not be relied on as a prediction of the selling price or value of the lot and may be revised from time to time in Sotheby's absolute discretion.
(d) No representations or warranties are made by Sotheby's or the seller as to whether any lot is subject to copyright or whether the buyer acquires copyright in any lot.
Subject to the matters referred to at 4(a) to 4(d) above and to the specific exclusions contained at Condition 5 below, Sotheby's shall exercise such reasonable care when making express statements in the online sale information (including, but not limited to, the online catalogue description and any condition report relating to the lot) as is consistent with the standard of care which a bidder would reasonably expect from an auction house of Sotheby's standing taking into account the estimate of the relevant lot and in the light of:
(i) the information provided to it by the seller;
(ii) scholarship and technical knowledge; and
(iii) the generally accepted opinions of relevant experts, in each case at the time any such express statement is made.
SOTHEBY'S LIABILITY TO BUYERS
5. Exclusion of liability: APART FROM THE GUARANTEE IN CONDITION 3 GIVEN BY 'SOTHEBY'S' TO THE 'BUYER' AND YOUR RIGHTS IN RELATION TO THE CONDUCT OF, AND BIDDING IN, AN ONLINE ONLY AUCTION AS SET OUT IN CONDITION 9:
(I) 'SOTHEBY'S' GIVES NO GUARANTEES OR WARRANTIES TO THE 'BUYER' AND ANY IMPLIED WARRANTIES OR CONDITIONS ARE EXCLUDED (SAVE IN SO FAR AS SUCH OBLIGATIONS CANNOT BE EXCLUDED BY STATUTE);
(II) IN PARTICULAR, ANY REPRESENTATIONS, WRITTEN OR ORAL AND INCLUDING THOSE IN ANY CATALOGUE, REPORT, COMMENTARY OR VALUATION, IN RELATION TO ANY ASPECT OR QUALITY OF ANY LOT, INCLUDING PRICE OR VALUE, (A) ARE STATEMENTS OF OPINION ONLY AND (B) MAY BE REVISED PRIOR TO THE LOT BEING OFFERED FOR SALE; AND
(III) NONE OF 'SOTHEBY'S', ANY 'SOTHEBY'S AFFILIATED COMPANY', OR ANY AGENT, EMPLOYEE OR DIRECTOR THEREOF SHALL BE LIABLE FOR ANY ERRORS OR OMISSIONS IN ANY SUCH REPRESENTATIONS.
6. Limitation on claims by buyers: Without prejudice to Conditions 3 and 5 above, and to the extent permitted by applicable law, and save insofar as it relates to any liability which we may have for personal injury or death, any claim against 'Sotheby's' by the 'buyer' shall be limited to the 'hammer price' and applicable 'buyer's premium' actually paid by the 'buyer' to 'Sotheby's' with regard to that lot.
SELLER'S LIABILITY TO BUYERS
7. Seller's obligations to buyers: THE 'SELLER'S' OBLIGATIONS TO THE BUYER ARE LIMITED TO THE SAME EXTENT AS SOTHEBY'S OBLIGATIONS TO THE BUYER. ANY EXPRESS OR IMPLIED CONDITIONS OR WARRANTIES ARE EXCLUDED SAVE INSOFAR AS IT IS NOT POSSIBLE TO EXCLUDE OBLIGATIONS IMPLIED BY STATUTE. IN ADDITION, SOTHEBY'S RESERVES THE RIGHT TO AGREE VARIATIONS TO THE 'SELLER'S' WARRANTIES WITH THE 'SELLER'.
PARTICIPATION IN THE ONLINE ONLY AUCTION
8. Registering to bid in an online only auction:
(a) In order to bid in an online only auction, you must have set up a verified account (in accordance with the procedures set out at 8(b) and 8(c) below).
(b) If you have not already bid online in a Sotheby's sale, you will have to create a verified account in order to register for a particular online only auction and to be eligible to bid in that particular online only auction. The registration process requires that you submit your request to open a verified account no later than 24 hours prior to the closing of the first lot in the relevant online only auction in which you wish to bid (you will also be required to provide certain information to Sotheby's as part of the application process) to create a verified account, please follow the registration instructions provided at:
https://www.sothebys.com/en/registration/transactional.html
(c) If you have already set up a verified account, you can sign into the applicable online only auction using your existing username and password. Once you have registered for a particular online only auction, you can submit bids using your existing verified account (if you have multiple accounts, you will need to select the account under which you wish to transact in a particular online only auction). To login to your verified account, please follow the login instructions provided at:
https://www.sothebys.com/en/registration/login-to-sothebys.html
(d) By registering to bid in an online only auction (whether in an individual capacity or on behalf of a company), you acknowledge and agree that by submitting a bid in an online only auction (i) in your individual capacity, in which case you accept personal liability to pay the amounts identified at Condition 10(b) below as principal and (ii) in your capacity as agent for an identified third party, in which case you accept joint and several liability to pay the purchase price with your principal.
(e) In order to set up a verified account, you are required to supply the information requested, including valid credit card or other accepted payment method information. Sotheby's has absolute discretion to refuse an application to register for, or bid in, an online only auction. Throughout the registration process, Sotheby's has absolute discretion to request bidders to supply such additional information and references as may be required by Sotheby's.
(f) Sotheby's reserves the right to deactivate your verified account at any time prior to, during, or after an online only auction.
9. Conduct of, and bidding in, an online only auction:
(a) Bidding opens at a specified amount (known as the 'reserve' below which the lot cannot be sold) and escalates in bid increments which are set out in the online sale information relating to the lot and which are determined at Sotheby's discretion). If any lot is not subject to a reserve, the 'no reserve' symbol will be displayed against the lot in the online sale information. Under no circumstance will the online only platform place any bid on behalf of the seller at or above the reserve. Sotheby's may vary the amount of the bid increments during the course of an online only auction, at our sole discretion. Bids for a lot may only be submitted between the dates and times specified in the online sale information relating to the applicable online only auction.
(b) An online only auction can be fast-moving. Competitive bidding can often escalate very quickly. Once you have set up a verified account, you will be able to submit a bid for a lot by entering your maximum bid and clicking the 'Leave Bid' or 'Place Bid' button. If you haven't already registered as a verified accountholder, you will be prompted to do so at that point. You will then be asked to review, correct (if necessary) and confirm your maximum bid. As soon as the 'Leave Bid' or 'Place Bid' button is clicked, your bid is submitted. You accept and agree that a bid which is submitted using the 'Leave Bid' or 'Place Bid' button is, subject to this Condition 9(b), final and binding and that you will be held personally liable for that bid. Each bidder will be entitled to amend, retract or revoke up to three separate bids in an online only auction but thereafter, the online only platform will not under any circumstances allow you to amend, retract or revoke a bid. If a bid is successfully submitted on a lot in an online only auction from a bidder's computer or mobile device, the bidder irrevocably agrees to pay the amounts identified in Condition 10 below, in full. Sotheby's is not responsible for any errors that the bidder makes in bidding on a lot. Sotheby's reserves the right to restart an online only auction or to restart bidding on a particular lot if we consider it is necessary or appropriate or reasonable to do so.
(c) The online only platform requires that you submit a bid which correlates to one of the increments set out in the bidding increment table which is available to view at lot level.
(d) If you have the leading bid on a lot, you will receive a notification on the online only platform informing you that you are the highest bidder. If you are outbid by another bidder, you will receive an email notification to inform you accordingly.
(e) In the event that you submit a bid for an amount at which a bid has already been accepted, your bid shall be rejected.
(f) Unless Sotheby's decides to exercise its discretion in accordance with Condition 9(h) below, the highest bid when the lot closes will be the successful bidder. This means that a contract for sale has been formed between the seller and the successful bidder at the end of the online only auction. The successful bidder will receive an email notification of any successful bid and will be invoiced by Sotheby's in accordance with Condition 10 below.
(g) The sale record for an online only auction maintained by Sotheby's will be taken as absolute and final in all disputes.
In the event of any discrepancy between the sale record for an online only auction maintained by Sotheby's and any message or notification provided to you in relation to your bid on a lot and/or the applicable online only auction, the sale record for the online only auction maintained by Sotheby's shall prevail.
(h) Sotheby's reserves the right, in our sole and absolute discretion, to reject, revoke or refuse to accept any bid submitted for a lot using the online only platform even those bids which have previously been accepted; to withdraw any lot whether prior to or during the online only auction and Sotheby's shall have no liability whatsoever in connection with such withdrawal; to divide or combine any lots; or to restart the bidding on a lot at any time during the online only auction.
(i) If a bidder makes a bid during an online only auction, such bidder does so as principal and will be held personally and solely liable for that bid unless Sotheby's has previously agreed with such bidder in writing that the bidder does so on behalf of an identified third party who is acceptable to Sotheby's. In circumstances where Sotheby's has so agreed, both the bidder and the third party will be jointly and severally liable for all obligations arising from the bid, and the third party shall be bound by these Conditions of Business by the principal bidding as his agent in the same way as if he were bidding personally.
(j) Currency converter: ONLINE ONLY AUCTIONS ARE CONDUCTED BY SOTHEBY'S IN SWISS FRANCS. Where a currency converter is operated, it is for your convenience only. Errors may occur in the currency converter and you should not rely on it as a substitute for the Swiss francs bidding.
AFTER CLOSURE OF THE ONLINE ONLY AUCTION
10. Payment for a purchased lot:
(a) the successful bidder of a lot (i.e. the buyer) will receive by email an invoice from Sotheby's as soon as reasonably practicable after the final lot in the relevant online only auction closes. In the event of any discrepancy between any email notifications received by a bidder or a buyer from Sotheby's via the online only platform and the buyer's invoice emailed by Sotheby's after the relevant online only auction closes, the buyer's invoice prevails. Terms and conditions regarding payment of the buyer's invoice are set out below.
(b) The invoice for the purchase price of the purchased lot (the "buyer's invoice") will include:
(i) the hammer price;
(ii) applicable buyer's premium; and
(iii) any expenses and other applicable duties or taxes.
Subject to Condition 10(e), Sotheby's will also email the successful bidder a buyer's shipping quote to the address registered on your verified account. Please refer to Condition 10 of these Conditions of Business for further information. For international buyers, the terms of sale are delivery duty unpaid. If the successful bidder has purchased a lot for delivery outside of Switzerland, you acknowledge and agree that it is your responsibility to ascertain and pay all international duties, custom charges, taxes, charges and tariffs owed to the appropriate government entity or that otherwise need to be paid prior to shipment and/or delivery including any third party charges necessary to facilitate shipment.
(c) The buyer of a lot is solely responsible for the payment of any VAT (including, but not limited to, any import VAT), sales tax or value added sales tax, sales or compensating use tax or any other similar tax payable as a result of the sale of a lot. Further information and guidance as to the application of such taxes is provided in the Guide to Buying in an Online Only Auction.
(d) UNLESS OTHERWISE AGREED, PAYMENT OF THE TOTAL AMOUNT SPECIFIED ON THE BUYER'S INVOICE (BEING THE HAMMER PRICE, APPLICABLE BUYER'S PREMIUM AND ANY EXPENSES, REFERRED TO IN THESE CONDITIONS OF BUSINESS AS THE 'TOTAL AMOUNT DUE) FOR A LOT IS DUE BY THE BUYER IMMEDIATELY FOLLOWING RECEIPT OF THE SOTHEBY'S RECEIPT NOTWITHSTANDING ANY REQUIREMENTS FOR EXPORT, IMPORT OR OTHER PERMITS FOR SUCH LOT.
(e) Sotheby's will only accept payment from the registered bidder and we cannot change the buyer's name on an invoice or reissue the invoice in a name which differs to the name of the registered bidder. If you are registered to bid as a company, your company will need to pay for any purchases in the name of the company via an accepted payment method. Partial payment of a lot, or payment across multiple credit cards for a single lot, is not permitted. Further information regarding accepted payment methods is set out in the Guide to Buying in an Online Only Auction set out above.
(f) Title in a purchased lot will not pass until Sotheby's has received the total amounts due for that lot in accordance with Condition 10(b) above in cleared funds. Sotheby's is not obliged to release a lot to the buyer until title in the lot has passed and appropriate identification has been provided, and any earlier release does not affect the passing of title or the buyer's unconditional obligation to pay the total amounts due for that lot in accordance with Condition 10(b) above.
(g) Risk in and responsibility for the purchased lot will transfer to the buyer as follows: (i) if Sotheby's dispatches the lot to the buyer using the method of shipping specified for the lot in the relevant online only auction, when the lot comes into the physical possession of the buyer or a person identified by the buyer to take physical possession of the lot on the buyer's behalf; or (ii) if collection by the buyer in person is permitted for the relevant online only auction, when the buyer collects the lot. As a buyer, you acknowledge and agree that the lot is at your risk if you choose to exercise any right you may have to cancel the contract for the purchase of the lot (in accordance with the procedure set out at Condition 14 below) and that you should therefore ensure that you insure the lot against loss or damage until it is returned to Sotheby's. You shall be solely responsible for insuring the lot purchased from the time risk passes to you. You will be compensated for any loss or damage to the lot which occurs after sale but prior to the time risk passes to you. The maximum amount of compensation shall be the 'hammer price' of the lot, plus the 'buyer's premium' received by 'Sotheby's', and shall exclude any indirect or consequential loss or damage. However, we will not, in any circumstances, be liable for any loss or damage caused to frames or to glass which is covering prints, paintings or other works unless the frame or glass is, in itself, the object sold at auction. Nor will we be liable for loss or damage caused by any of the events set out in Condition 22 below.
11. Transport and Shipping:
(a) As stated in Condition 10 above, you will be emailed the buyer's shipping quote at the same time that you are emailed the buyer's invoice. Once you have accepted the buyer's shipping quote and provided that the purchased lot and the amount stated in the buyer's shipping quote have each been paid for in full by the buyer by the payment deadline stated, Sotheby's will ship the purchased lot to the buyer to the address provided by you on your verified account, no later than thirty (30) days from conclusion of the sale contract between the seller and the buyer, unless otherwise explicitly agreed. Purchased lots cannot be delivered to P.O. boxes.
(b) The buyer is responsible for payment of the buyer's shipping costs as specified in the buyer's shipping quote. Although Sotheby's shall use reasonable efforts to take care when handling, packing and facilitating any shipment of a purchased lot, Sotheby's is not responsible for any acts or omissions by any third party retained for these purposes including, without limitation, any packing, shipping or delivery of purchased lots. Similarly, where Sotheby's may suggest or recommend any third party handler, packer or carrier if so requested by a buyer, you acknowledge and agree that Sotheby's does not accept liability for their acts or omission and you agree to release Sotheby's from any such liability.
(c) Any lot sold in an online only auction may be affected by laws on exports from the country in which it is sold and the import restrictions of other countries. Many countries require a declaration of export for property leaving the country and/or an import declaration on entry of property into the country. Obtaining the necessary permits and/or licences may result in additional costs and subsequent delays. Local laws may prevent you from importing a lot or may prevent you from selling a lot in the country which you import into. It is the buyer's sole responsibility to identify and obtain any necessary export, import, firearm, endangered species or other permit for the lot. Any symbols or notices in the sale catalogue reflect Sotheby's reasonable opinion at the time of cataloguing and offer bidders general guidance only. For further guidance on export/import restrictions, please refer to the Guide to Buying in an Online Only Auction.
(d) Without prejudice to Conditions 4 and 5 above, Sotheby's and the Seller make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes. The denial of any permit or licence shall not justify cancellation or rescission of the sale contract or any delay in payment.
(e) Sotheby's is unable to arrange delivery to those locations which are specified as excluded zones in the shipping costs calculator which is available on the online only platform (each an "unavailable destination"). In the event that you request delivery of a lot to an unavailable destination, Sotheby's reserves the right to require you to collect the lot from Sotheby's office premises at 2 rue Francois-Diday, 1204, Geneva, Switzerland or to arrange delivery of the Lot by a third party carrier.
12. Export: Should the export of any lot from Switzerland be subject to one or more export licences being granted or import licences to another country be required, it is the 'buyer's' responsibility to obtain any relevant export or import licence. Lots purchased shall be paid for in accordance with Condition 10, and the denial of any export or import licence required or any delay in the obtaining of such licence shall not justify the rescission or cancellation of the sale by you or any delay by you in making payment of the 'total amount due' for the lot.
13. Remedies for non-payment: If the 'total amount due' is not paid on any lot in accordance with Condition 10, we shall, in our discretion and without prejudice to any other rights which we and the 'seller' may have, be entitled, both for ourselves and as agent for the 'seller', to exercise any one or more of the following rights or remedies:
(a) commence proceedings against you for damages for breach of contract;
(b) cancel the sale of the lot;
(c) apply any payments made by you to us or any 'Sotheby's affiliated company' as part of the 'total amount due' or otherwise towards any costs or 'expenses' incurred in connection with the sale of the lot;
(d) apply any payments made by you to us or any 'Sotheby's affiliated company' as part of the 'total amount due' or otherwise towards any other debts or damages owed by you to us or any other 'Sotheby's affiliated company' in respect of any other transaction;
(e) arrange and carry out a re-sale of the lot by auction or private sale in mitigation of the debt owed by you to us. You and the 'seller' consent to, and authorise us to arrange and carry out, such re-sale on the Conditions of Business applicable at the time of such re-sale and agree that the level of the reserve and the estimates relevant to such re-sale shall be set at our sole discretion. The 'net sale proceeds' will be applied in reduction of your debt. If a re-sale should result in a lower price than the original 'hammer price' obtained, we and the 'seller' shall be entitled to claim the balance from you together with any costs incurred in connection with your failure to make payment. If the re-sale should result in a higher price than the original 'hammer price' obtained, the surplus shall be paid to the 'seller'. In such case, you waive any claim which you may have to title to the lot and agree that any re-sale price shall be deemed commercially reasonable;
(f) set off any amounts owed by us or any 'Sotheby's affiliated company' to you against any amounts which you owe to us or any 'Sotheby's affiliated company', whether as the result of any proceeds of sale or otherwise;
(g) exercise a lien over any of your property which is in our possession or in possession of any 'Sotheby's affiliated company' for any reason until payment of all outstanding amounts due to us has been made in full. We shall notify you of any lien being exercised and the amount outstanding. If the amount outstanding then remains unpaid for fourteen days following such notice, we shall be entitled to arrange and carry out the sale of any such property in accordance with (e) above;
(h) charge you the 'seller's commission' and our reasonable legal and administrative costs incurred;
(i) charge you interest at a rate not exceeding 6% (six per cent) per annum above the discount rate quoted by 'Sotheby's' principal bank in Geneva from time to time on the 'total amount due' to the extent that it remains unpaid for more than five (5) working days after the date of the auction;
(j) store the lot at 'Sotheby's' premises or elsewhere at the 'buyer's' sole risk and expense;
(k) reject any bids made by or on your behalf at any future auction or require you to make a deposit with us before accepting any such bids.
14. Cancellation of the purchase of a lot in an online only auction:
(a) If the buyer is an online consumer and the seller is an online trader, the buyer shall have the right to cancel the sale contract which exists directly between the online trader (as seller) and the online consumer (as buyer) during the online sale cancellation period for any reason provided that (i) the online consumer duly informs Sotheby's during the online cancellation period of their intention to cancel the purchase of the lot; and (ii) the online consumer returns the lot to Sotheby's without undue delay and in any event not later than fourteen (14) calendar days from the day after the online consumer has communicated their intention to cancel the purchase of the lot to Sotheby's.
(b) To exercise the right to cancel the sale contract in relation to a lot, the online consumer must inform Sotheby's of their decision to cancel the sale contract by a clear statement (e.g. a letter sent by post, fax or email). Alternatively, the online consumer may use the model cancellation form set out below. Provided that the online consumer sends the communication to inform the online trader of the cancellation prior to the end of the online sale cancellation period, the online consumer will be deemed to have cancelled the sales contract within the online sale cancellation period.
(c) If the online consumer cancels the sales contract within the online sale cancellation period, Sotheby's will reimburse (without undue delay and in any event within fourteen (14) calendar days after receipt of the returned lot from the online consumer within the time frame specified in Condition 14(a)(ii)) payments received by Sotheby's from the online consumer (including the purchase price and any standard online delivery costs). Sotheby's shall not process the reimbursement unless and until the lot is returned to Sotheby's or you have supplied Sotheby's with evidence of having returned the lot to us.
(d) Sotheby's will make the reimbursement to the online consumer using the same method of payment as the online consumer used for the initial transaction, unless expressly agreed otherwise. Sotheby's will not charge the online consumer any fee in connection with processing the reimbursement.
(e) Sotheby's shall not reimburse the online consumer by the amount of any supplementary costs which arise if you chose a type of delivery other than the least expensive type of standard delivery offered by Sotheby's or any import duties we incur as a result of you returning the lot to us. Sotheby's is entitled to deduct from the reimbursement the amount of any loss in value of the lot which is caused as a result of unnecessary handling by you.
(f) You shall send back the lot or hand it over to us at such address as we may specify for the purpose, without undue delay and in any event no later than fourteen (14) calendar days from the day after which you communicate your cancellation of your purchase of the lot to us. This deadline is met if you send back the lot before the period of fourteen (14) calendar days has expired. You will have to bear the direct costs of returning the lot. If we arranged for the lot to be delivered we estimate that the cost of returning the lot by the same means is likely to be similar to the cost of delivery but it is not possible for us to be more accurate as to this cost due to the many variables involved in our worldwide business model and the means by which a return might be made.
15. Cancellation of the provision of services in relation to an online only auction:
(a) If the buyer is an online consumer and the seller is an online consumer, the buyer shall not have the right to cancel the sale contract (in accordance with Condition 14 above). However, the buyer shall be entitled to cancel the contract for any delivery services which Sotheby's agrees to provide to the buyer in connection with your purchase of the lot during the online services cancellation period without giving any reason.
(b) As a buyer in an online only auction, you request Sotheby's immediately to begin performance of the delivery services during the online services cancellation period. If you subsequently decide to exercise your right to cancel the provision of services (in accordance with Condition 15(a) above) during the online services cancellation period, you shall pay to Sotheby's an amount which is in proportion to the value of the services that have been performed by the time you exercise your cancellation right. Sotheby's will make any reimbursement due to you without undue delay and in any event, not later than fourteen (14) calendar days after the date on which we are informed about your decision to cancel the services. Sotheby's will make the reimbursement to the online consumer using the same method of payment as the online consumer used for the initial transaction, unless expressly agreed otherwise. Sotheby's will not charge the online consumer any fee in connection with processing the reimbursement.
(c) To exercise the right to cancel the contract in for delivery services in relation to a purchased lot, the online consumer must inform Sotheby's of their decision to cancel the provision of services by a clear statement (e.g. a letter sent by post, fax or email). Alternatively, the online consumer may use the model cancellation form set out below. Provided that the online consumer sends the communication to inform Sotheby's of the cancellation prior to the end of the online services cancellation period, the online consumer will be deemed to have cancelled the contract for delivery services within the online services cancellation period.
Model form of cancellation - sale of goods/provision of services
To: Sotheby's SA
I/We* hereby give notice that I/We* cancel my/our sale of the following goods [*]/for the provision of the following services [*],
Ordered on [*]/received on [*],
Name of online consumer(s):
Address of online consumer(s):
Signature of online consumer(s) [only if the notification is in hard copy]
Date:
[*] Delete as appropriate
C. CONDITIONS MAINLY CONCERNING SELLERS
16. Seller's warranties: This Condition governs your relationship with both the 'buyer' and ourselves. If we or the 'buyer' consider any of the warranties listed below to be breached in any way, either we or the 'buyer' may take legal action against you. You agree to indemnify 'Sotheby's' and any 'Sotheby's affiliated company', their respective servants, directors, officers and employees and the 'buyer' against any loss or damage resulting from any breach or alleged breach of any of your representations or warranties, or other terms set forth in these Conditions of Business. Where we reasonably believe that any breach of such representation or warranty has occurred, you authorise 'Sotheby's', in its sole discretion, to rescind the sale.
You warrant to us and to the buyer that at all relevant times (including, but not limited to, the time of the consignment of the property and of the time of the sale of the property):
(a) you are the true owner of the property, or are properly authorised to sell the property by the true owner;
(b) you are able to, and shall, in accordance with these Conditions of Business, transfer possession to the buyer and good and marketable title to the property free from any third-party rights or claims or potential claims including, without limitation, any claims which may be made by governments or governmental agencies;
(c) you have provided us with all information concerning the provenance, condition and restoration of the property and have notified us in writing of the existence of any endangered or protected species in the item or any concerns you may have or that have been expressed by third parties in relation to the ownership, condition, authenticity, attribution, or export or import of the lot;
(d) you are unaware of any matter or allegation which would render any description given by us in relation to the lot inaccurate or misleading;
(e) your warrant to us and to the buyer that at all relevant times (including, but not limited to, the time of the consignment of the property and of the time of the sale): where the property has been moved to Switzerland from another country the property was lawfully imported into Switzerland; the property had been lawfully and permanently exported as required by the laws of any country in which it was previously located; required declarations upon the export and import of the property were properly made; and any duties and taxes on the export and import of the property have been paid;
(f) you have or will pay any and all taxes and/or duties that may be due on the 'net sale proceeds' of the property and you have notified us in writing of any or all taxes and for duties that are payable by us on your behalf in any country other than the country of the sale;
(g) unless you advise us in writing to the contrary at the time you deliver the property to us, there are no restrictions, copyright or otherwise, relating to the property (other than those imposed by law) and no restrictions on our rights to reproduce photographs or other images of the property; and
(h) unless you advise us in writing to the contrary at the time you deliver the property to us, any electrical or mechanical goods (or any electrical or mechanical parts of lots being offered for sale) are in a safe operating condition if reasonably used for the purpose for which they were designed and are free from any defect not obvious on external inspection which could prove dangerous to human life or health.
BEFORE THE ONLINE ONLY AUCTION
17. Preparation for inclusion of the property in an online only auction: You agree that we shall have sole and absolute discretion as to:
(i) the way in which property may be combined or divided into lots for sale in the online only auction;
(ii) the way in which lots are included in the online only auction;
(iii) the way in which any lot is described and illustrated in the online sale information;
(iv) the start date and/or closing date of the online only auction;
(v) the manner in which the online only auction is conducted; and
(vi) operation of the online only platform.
We reserve the right to consult with, and rely on, any outside experts, consultants or restorers of our choice in relation to the property and to carry out such other inquiries or tests in relation to the property either before or after the online only auction as we may, in our absolute discretion, deem appropriate. This is, however, a matter for our discretion and we are under no duty to carry out such consultation, inquiries or tests.
18. (a) Estimates: Any estimate given by us, whether written or oral, is a matter of opinion only and is intended only as a guide. An estimate shall not be relied upon as a prediction of the anticipated selling price. Any estimate given (whether written or oral and whether in a catalogue, receipt, letter or otherwise) may, in our absolute discretion, be revised by Sotheby's prior to the start of the online only auction.
(b) Attribution: The seller acknowledges that attribution of items is a matter of opinion and not of fact, and is dependent upon (amongst other things): information provided by the seller, the condition of the property, the degree of research, examination or testing that is possible or practical in the circumstances, and the status of generally accepted expert opinion at the time of cataloguing.
(c) Standard of care: Taking the above factors into account and subject to the exclusions contained in Conditions 18(e) and 18(f) below, Sotheby's shall exercise such reasonable care in compliling the online catalogue description and condition report for an online only auction, as is consistent with its role as auctioneer of large quantities of goods of a wide variety.
(d) Condition reports: The seller acknowledges that the property is offered for sale in the condition it is in at the time of the online only auction and that Sotheby's shall provide a condition report for the lot to assist potential buyers with assessing the condition of the lot and for general guidance only. The seller further acknowledges that any condition report prepared by Sotheby's and made available on the online only platform in relation to a lot, may not refer to all faults, restoration, alteration or adaption because Sotheby's is not a professional conservator or restorer but rather the condition report is a statement of opinion genuinely held by Sotheby's.
(e) Exclusion of liability: In the light of Sotheby's knowledge of and dependence on information provided to it by the seller, and the additional matters set out in Condition 17 above, but in any event subject to Conditions 17(c), no Sotheby's Company nor any officer or employee thereof is liable: (i) for any errors or omissions in any oral or written information provided by it to Sellers; or (ii) for any acts or omissions by it, in connection with the preparation for or conduct of auctions or for any matter relating to the sale of any item, whether negligent or otherwise.
(f) Limitations on claims by seller: Any claim by the seller shall, in any event, be limited to the 'net sale proceeds' in respect of that lot.
19. Withdrawal of lots by you: IF YOU CHOOSE TO WITHDRAW PROPERTY FROM THE ONLINE ONLY AUCTION AFTER THE EARLIER OF (I) YOUR WRITTEN AGREEMENT TO SELL THE PROPERTY WITH US AND (II) 12 WEEKS BEFORE THE START DATE OF THE RELEVANT ONLINE ONLY AUCTION, YOU WILL BE LIABLE TO PAY TO US COMPENSATION FOR SUCH WITHDRAWAL CALCULATED IN ACCORDANCE WITH CONDITION 21 BELOW. IF YOU WITHDRAW PROPERTY BEFORE THAT TIME, NO WITHDRAWAL COMPENSATION SHALL BE PAYABLE.
20. Withdrawal of lots by us: WE MAY WITHDRAW A LOT FROM AN ONLINE ONLY AUCTION WITHOUT ANY LIABILITY IF (I) WE REASONABLY BELIEVE THAT THERE IS ANY DOUBT AS TO ITS AUTHENTICITY OR ATTRIBUTION OR (II) IT IS ESTABLISHED OR ALLEGED THAT ANY OF THE 'SELLER'S' REPRESENTATIONS OR WARRANTIES SET OUT IN CONDITION 16 ABOVE ARE INACCURATE IN ANY WAY OR (III) YOU BREACH ANY PROVISIONS OF THE CONDITIONS OF BUSINESS IN ANY MATERIAL RESPECT OR (IV) THE LOT CONTAINS ANY ENDANGERED SPECIES FOR WHICH A 'CITES' SALE EXEMPTION IS REQUIRED AND THE SALE EXEMPTION HAS NOT BEEN GRANTED BY FIVE (5) DAYS PRECEDING THE START DATE OF THE ONLINE ONLY AUCTION OR (V) WE CONSIDER THE LOT TO BE OF INSUFFICIENT SALE VALUE OR (VI) THE LOT SUFFERS FROM LOSS OR DAMAGE SO THAT IT IS NOT IN THE STATE IN WHICH IT WAS WHEN WE AGREED TO SELL IT OR (VII) THE ONLINE ONLY AUCTION AT WHICH IT WAS PROPOSED TO SELL THE LOT IS POSTPONED FOR ANY REASON OR (VIII) SOTHEBY'S DETERMINES IN ITS ABSOLUTE DISCRETION THAT THE SALE OF SUCH LOT MAY BE DETRIMENTAL TO SOTHEBY'S REPUTATION AND/OR BRAND.
If we become aware of a competing title claim to or lien over, a lot consigned by you, we shall not release the lot to you until the title claim or lien, as applicable, has been finally resolved to our satisfaction.
21. Withdrawal compensation: If the property is withdrawn by us because the circumstances described in any of (i), (iv), (v), (vi) or (vii) of Condition 20 above occur, then you shall not be charged a withdrawal compensation and the property shall be returned to you at your expense provided that there is no adverse title claim on the property. If a lot is withdrawn from sale under Condition 20(viii) above, you shall not be charged a withdrawal fee unless you failed to disclose to Sotheby's prior to the sale any facts or circumstances known to you which are relevant for the purpose of Sotheby's determination under Condition 20(viii). If, however, the property is withdrawn by us for any other reason, you shall pay us a withdrawal compensation fee together with any 'expenses'. The withdrawal compensation shall be of an amount to reimburse 'Sotheby's' for its time, costs and expertise used in cataloguing and marketing the property. We shall not be obliged to withdraw any property from sale or to return it to you unless you have paid us the withdrawal compensation. The timing and the content of any announcement regarding the withdrawal shall be in Sotheby's sole discretion.
22. Liability for loss or damage assumed by 'Sotheby's':
(a) Unless otherwise agreed with 'Sotheby's' in writing in accordance with Condition 23 below, 'Sotheby's' will assume liability for loss of or damage to any item, commencing at the time that item is received by 'Sotheby's' and ceasing when (i) risk passes to the 'buyer' of the lot following its sale; (ii) for unsold lots, 60 days after the sale or when the lot is released to the 'seller' (whichever is earlier), or (iii) 6 months from delivery to 'Sotheby's' for items still at 'Sotheby's' but not consigned for sale.
(b) The 'seller' agrees to pay a charge for the above liability accepted by 'Sotheby's', at 'Sotheby's' published rates at the date of consignment, being the stated percentage of (i) the 'hammer price', if the lot is sold (which shall be deducted from the proceeds of sale); or (ii) the mean of 'Sotheby's' pre-sale estimates, if the item is not offered for sale for any reason (and if there are no pre-sale estimates, then 'Sotheby's' reasonable estimate of the item's auction value); or (iii) the 'reserve price', if the lot is unsold; plus in each case an amount in respect of any applicable VAT or other Swiss tax.
(c) If any loss or damage should occur to the lot during the period identified in paragraph (a) above, 'Sotheby's' liability to compensate the 'seller' in respect of that loss shall be limited to the amount set out in paragraph (b) (i) to (iii) as applicable, less 'seller's commission' and 'expenses'. If in 'Sotheby's' reasonable opinion the loss or damage to the lot results in a depreciation in value of less than 50%, 'Sotheby's' will pay the 'seller' the amount of depreciation and the lot will be offered for sale or, at the 'seller's' request, returned to them.
(d) 'Sotheby's' will not be liable for any loss or damage caused to frames or to glass covering prints, paintings or other work, for loss or damage occurring in the course of any process undertaken by independent contractors employed with the 'seller's' consent (including restoration, framing or cleaning), or for loss or damage which is caused directly or indirectly or results from (i) changes in humidity or temperature; (ii) normal wear and tear, gradual deterioration or inherent vice or defect (including woodworm); (iii) errors in processing; or (iv) war, nuclear fission or radioactive contamination, chemical, bio-chemical or electro-magnetic weapons, or any act or acts of terrorism (as defined and applied by Sotheby's insurers).
23. Insurance by the 'seller':
(a) The 'seller' must agree with 'Sotheby's' in writing if it does not wish 'Sotheby's' to accept liability for loss or damage to any item delivered to 'Sotheby's', and undertake to maintain insurance cover for the item until the 'buyer' has made payment for the item in full. In such circumstances, the 'seller' agrees to: (i) provide 'Sotheby's' with a copy of a certificate of insurance for the item and a waiver of subrogation by the 'seller's' insurer of all rights and claims which the 'seller' may have against 'Sotheby's', each in a form satisfactory to 'Sotheby's'; (ii) indemnify 'Sotheby's' on demand against any claim for loss or damage in respect of the item, however such claim may arise and for all related costs or expenses. Any payment which 'Sotheby's' makes under this Condition shall be binding upon the 'seller' whether or not legal liability has been proved; (iii) notify the 'seller's' insurer of the terms of the indemnity set out in (ii) above; and (iv) waive all rights and claims which the 'seller' may have against 'Sotheby's' in connection with such loss or damage, other than in circumstances where the loss or damage was caused by 'Sotheby's' wilful misconduct.
(b) If the Seller fails to comply with Condition 23(a)(i) above within 10 days of delivery of the item to 'Sotheby's', 'Sotheby's' shall assume liability for loss or damage to the item in accordance with the terms of Condition 22 from the following day, although 'Sotheby's' liability shall be limited to the excess (if any) of (A) the amount set out in Condition 22(c) over (B) any amount payable to the 'seller' under its own insurance plus any applicable deductible.
24. Reconsignment: We may, at our discretion, decide to reconsign any lot so that it shall be offered for sale at public auction by another 'Sotheby's affiliated company'. We shall notify you in writing if we decide to do this and, unless you object in writing within ten (10) days of such notice, you shall be treated as consenting to such reconsignment. In those circumstances, any sale shall be conducted under the Conditions of Business applicable to the relevant sale, save only that, as between you and us, these Conditions of Business shall continue to apply and shall prevail in the event of any conflict. Any proceeds of sale shall be remitted to you in the currency in which the auction is conducted and all local taxes shall apply.
DURING THE ONLINE ONLY AUCTION
25. 'Reserves': Unless otherwise agreed in writing, the reserve for each lot will be equal to seventy five per cent (75%) of the 'low pre-sale estimate' notified to the 'seller'.
No Reserve may exceed the lot's final low pre-sale estimate published by Sotheby's on the online only platform prior to the start of the relevant online only auction. The reserve for the property cannot be amended at any time during the online only auction. In the event of exchange rate fluctuations affecting a non-Swiss franc reserve and Sotheby's being unable to agree a revised reserve with the seller, the Swiss franc reserve shall be calculated at the closing exchange rate available on the business day immediately preceding the start date of the relevant online only auction. The Seller acknowledges and agrees that under no circumstances shall Sotheby's be able to submit any bid for a lot via the online only platform on behalf of the seller at or above the reserve.
'SOTHEBY'S' SHALL IN NO CIRCUMSTANCES BE LIABLE IF BIDS ARE NOT RECEIVED AT THE LEVEL OF THE 'RESERVE'.
26. Bidding at the sale: The seller may not bid or instruct or permit any other person to bid via the online only platform on its behalf for its own property in the relevant online only auction. If the seller breaches this prohibition, Sotheby's may treat the seller as bound as seller and as buyer but without the benefit of Sotheby's Authenticity Guarantee or the reserve, and may in its reasonable discretion disregard and cancel any bids made by the seller (or any other person acting on the seller's behalf) via the online only platform and/or pursue other remedies.
27. Operation of the online only platform: (a) Sotheby's offers the online only platform as a convenience to its clients and the online only platform shall be operated by Sotheby's using reasonable care. Sotheby's will not be liable to the Seller for any errors or failure by Sotheby's to execute bids placed by bidders or buyers using the online only platform via the internet or a mobile device (except where any such error or failure is unreasonable) including, without limitation, errors or failures caused by: (i) any loss of connection between bidders or buyers and the online only platform; (ii) a breakdown or fault with the online bidding software or other technical services which relate to the online only platform; and/or (iii) a breakdown or fault with any internet connection, computer, mobile device or system.
(b) The Seller acknowledges that potential buyers shall not be given the right to inspect the property prior to bidding in the online auction and accepts that, in the event that the seller is an online trader, Sotheby's is required by applicable law to permit online consumers to cancel the sale contract in accordance with Condition 14 and the Conditions of Business.
AFTER THE ONLINE ONLY AUCTION
28. Payment to be made by you to us: Following the online only auction, you will be liable to pay us the following sums:
(i) the 'seller's commission'; and
(ii) 'expenses'.
We shall be entitled to deduct each of these items from monies received from the 'buyer'. You authorise 'Sotheby's' to charge the 'buyer' and retain a 'buyer's premium'.
29. Payment of net sale proceeds to the 'seller':
(a) A sale contract is made directly between the buyer and the seller. Sotheby's sole obligation in relation to the net sale proceeds shall be a contractual duty once appropriate seller's identification has been received (otherwise than where the buyer is an online consumer and the seller is an online trader and the buyer cancels the purchase of the lot in the manner described in Condition 14 or where Sotheby's reasonably believes there may otherwise be grounds to rescind the sale of the lot) to send to the seller the net sale proceeds in Swiss franc received from the buyer in cleared funds, less any other amount the seller owes Sotheby's or any Sotheby's Company, in accordance with this Condition 29.
(b) Provided that (a) Sotheby's has received payment of the purchase price in full and in cleared funds from the buyer, and (b) the buyer or their agent takes possession of the property no later than the 20th calendar day post-sale, and (c) the buyer has not elected to exercise his right to cancel the purchase of the property during the online cancellation period (if applicable), thirty-five (35) calendar days after the closing date of the online only auction (the "settlement date"), Sotheby's will post or wire transfer to you in accordance with your written instructions the sale proceeds after deducting the following amounts from the sale proceeds received by Sotheby's in cleared funds: (i) the seller's commission (which is the commission payable by the seller to Sotheby's); (ii) the buyer's premium (which is the commission payable by the buyer to Sotheby's); (iii) the expenses; and (iv) any applicable VAT or amount required in lieu of VAT (the balance being the "net sale proceeds"), unless:
(i) a buyer has notified Sotheby's of their intention to rescind the sale in accordance with Sotheby's Authenticity Guarantee based on a claim that the property is "counterfeit" (within the terms of Sotheby's Authenticity Guarantee); or
(ii) you have breached any of your representations and warranties in Condition 16.
If a Buyer or their agent takes possession of the property after the 20th calendar day following the closing date of the online only auction, the settlement date shall be the date that is five (5) business days from the expiry of the online cancellation period.
(c) In the event that the buyer has duly notified Sotheby's of its intention to cancel the purchase of the property in accordance with the procedure set out in the Conditions of Business and returns the property to Sotheby's in accordance with Condition 14, the sale contract between you and the Buyer will be cancelled and the obligation upon Sotheby's to transfer net sale proceeds to you in accordance with this Condition 29, shall no longer apply.
Unless otherwise agreed with you in writing, net sale proceeds will be paid to you in Swiss franc.
(d) If Sotheby's releases a lot to the buyer before receipt of sale proceeds for it, Sotheby's shall pay the seller the net sale proceeds thirty five calendar days after the closing of the online only auction, or within five working days of release of the lot (if later).
30. Rescission: Where we are satisfied that the lot is a counterfeit, we shall rescind the sale and notify you of such rescission. We shall, in our absolute discretion, be entitled to dispense with the requirements of Condition 3 in determining whether or not a particular lot is a counterfeit. Within ten (10) days of receipt of the notice advising you of the rescission of sale, you will return to us any 'net sale proceeds' previously paid by us to you in connection with the lot and shall reimburse us for any 'expenses' incurred in connection with the rescinded sale. You shall indemnify us for all reasonable legal and associated costs and expenses incurred in connection with any enforcement action taken by Sotheby's in addition to any damages to which Sotheby's may be entitled. On receipt of such funds, we shall return the lot to you. We shall be entitled to the 'net sale proceeds' of the lot if, for reasons beyond our control, we cannot return the lot to you.
31. Non-payment by the buyer: We are under no obligation to enforce payment by any 'buyer' nor to undertake legal proceedings to recover such payment. You agree to inform us of any action which you choose to take against the 'buyer' to enforce payment of the amount due to you.
We have absolute discretion to take and enforce any of the remedies set out in Condition 13 above including the right to cancel the sale and return the property to you. On your request, we will inform you of any action being taken against the 'buyer' and shall give consideration to any views which you may express to us on the appropriate course of action to take to recover the amount due.
We shall be entitled to charge the 'buyer' interest for late payment in accordance with Condition 13(i) above and you authorise us to retain such interest for our own account.
If the 'buyer' fails to pay the 'total amount due' but we agree to remit to you an amount equal to the 'net sale proceeds', ownership of the relevant lot shall pass to us. For the avoidance of doubt, we shall have the benefit of all of your representations, warranties and indemnities set out in these Conditions of Business.
32. Cancellation of an Online Only Sale:
(a) The seller acknowledges and agrees that if the buyer is an online consumer and the seller is an online trader, the buyer shall have the right to cancel the sale contract which exists directly between the online trader (as seller) and the online consumer (as buyer) during the online cancellation period for any reason provided that (i) the online consumer duly informs Sotheby's during the online cancellation period of their intention to cancel the purchase of the lot; and (ii) the online consumer returns the lot to Sotheby's without undue delay and in any event not later than fourteen (14) calendar days from the day after the online consumer has communicated their intention to cancel the purchase of the lot to Sotheby's. Please be aware that if the online consumer has instructed a third party agent to collect and deliver the lot to the online consumer, the online cancellation period is deemed to start on the day after such third party carrier takes possession of the lot on behalf of the online consumer.
(b) In the event that Sotheby's receives a purchase cancellation notification from the online consumer during the online cancellation period, Sotheby's shall (i) inform the online trader (as seller) that the online consumer has exercised the right to cancel the purchase of the Lot as soon as reasonably practicable; and (ii) reimburse (without undue delay and in any event within fourteen (14) calendar days after receipt of the returned lot from the online consumer within the time frame specified in Condition 14(a)(ii)) payments received by Sotheby's from the online consumer (including the purchase price and any standard online delivery costs). Returned lots may either be consigned to Sotheby's for re-sale or, alternatively, collected by the seller (in which case Condition 34 shall apply).
(c) The seller acknowledges and agrees that if the buyer is an online consumer and the seller is an online trader and the online consumer exercises the cancellation right in accordance with these Conditions of Business, Sotheby's shall not be required to send the net sale proceeds received from the buyer of a Lot (in the manner described in Condition 29).
(c) The seller acknowledges and agrees that if the buyer is an online consumer and the seller is an online trader and the online consumer exercises the cancellation right in accordance with these Conditions of Business, Sotheby's shall be entitled to seek reimbursement of any standard delivery charges which Sotheby's is required to reimburse to the online buyer in accordance with these Conditions of Business.
33. Post-auction sales: If any lot fails to sell during the online only auction, Sotheby's shall be entitled (i) for a period of forty (40) days following the closing of the online only auction to sell the lot on the terms of these Conditions of Business. Any post-auction sale shall only be concluded for a price that will result in a payment to the seller of not less than the net sale proceeds for such Lot had it been sold at the reserve during the online only auction. Any reference in these Conditions of Business to the closing date of the online only auction shall be treated as being a reference to the date of the post-auction sale.
34. Unsold lot: We will send you a notice to the address given on the relevant property receipt form if any lot fails to sell during the online only auction. If such lot has not been sold privately pursuant to Condition 33 above, you shall either reconsign the lot to us for re-sale or, alternatively, collect the lot from us. If you decide to collect the lot, we reserve the right to charge you a reduced commission amounting to fifty per cent (50%) of the 'seller's commission', plus 'expenses'. The 'seller's commission' shall in these circumstances be calculated as if the lot had sold at the reserve price. The rate of 'seller's commission' shall be the rate applicable at the start date of the relevant online only auction.
If you fail either to reconsign or collect the lot as set out above within sixty (60) days of the closing date of the online only auction, we shall, in our sole discretion, be entitled to:
(i) store the lot at an independent storage facility at your risk and expense; or
(ii) re-offer the lot for sale at public auction with a reserve no less than fifty per cent (50%) of the original reserve.
In the event of such re-sale, we shall be entitled to deduct from the 'hammer price' the reduced commission in respect of the initial sale plus 'expenses' together with the 'seller's commission' on the re-sale plus 'expenses'. We reserve the right to charge you our reasonable legal and administrative costs incurred.
Any re-sale shall be conducted under the Conditions of Business of the relevant sale, save only that, as between you and us, these Conditions of Business shall continue to apply and shall prevail in the event of any conflict.
D. CONDITIONS CONCERNING BOTH BUYERS AND SELLERS
35. Governing law: These Conditions of Business and any amendment to them (including any online bids in the sale to which these Conditions apply) shall be governed by and interpreted and construed in accordance with Swiss law.
36. Jurisdiction:
(I) 'SOTHEBY'S' AND ALL 'BUYERS' AND 'SELLERS' (AND ANY PROSPECTIVE 'BUYERS' OR 'SELLERS') AGREE THAT THE ORDINARY COURTS OF THE CANTON OF GENEVA (SWITZERLAND) ARE (SUBJECT TO CONDITION 36(II) BELOW) TO HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE (INCLUDING CLAIMS FOR SET-OFF AND COUNTERCLAIMS) WHICH MAY ARISE IN CONNECTION WITH THE VALIDITY, EFFECT, INTERPRETATION OR PERFORMANCE OF, OR THE LEGAL RELATIONSHIPS ESTABLISHED BY, THESE CONDITIONS OF BUSINESS OR OTHERWISE ARISING IN CONNECTION WITH THESE CONDITIONS OF BUSINESS.
(II) THE AGREEMENT CONTAINED IN CONDITION 36(I) ABOVE IS INCLUDED FOR THE BENEFIT OF 'SOTHEBY'S'. ACCORDINGLY, NOTWITHSTANDING THE EXCLUSIVE AGREEMENT IN CONDITION 36(I) ABOVE, 'SOTHEBY'S' SHALL RETAIN THE RIGHT TO BRING PROCEEDINGS IN ANY OTHERWISE COMPETENT COURT.
37. Service of process: All 'buyers' and 'sellers' irrevocably consent to service of process or any other documents in connection with proceedings in any Court by facsimile transmission, personal service, delivery at the last address known to us or any other usual address, mail or in any other manner permitted by Swiss law, the law of the place of service or the law of the jurisdiction where proceedings are instituted.
38. Photographs and illustrations: You agree that we shall have the absolute right (on a non-exclusive basis) to photograph, illustrate or otherwise produce images of any lot consigned to us for sale. We shall retain copyright in all images created by us of any lot and shall have the right to use such images in whatever way we deem appropriate, both before and after the online only auction.
39. Value Added Tax (VAT): Where these Conditions of Business refer to an obligation to make payment by 'buyer' or 'seller', the 'buyer' or 'seller' (as applicable) shall be liable to pay any VAT required by law or, if applicable, any amount in lieu of such VAT. Where the Conditions of Business give 'Sotheby's' a right to receive payment from 'buyer' or 'seller', such right shall include the right to receive any VAT due or, if applicable, any amount in lieu of VAT.
40. Copyright: No representations or warranties are made by either the 'seller' or 'Sotheby's' as to whether any lot is subject to copyright, nor as to whether the 'buyer' acquires any copyright in any lot sold.
41. Export/import and embargoes: No representations or warranties are made by 'Sotheby's' or the 'seller' as to whether any lot is subject to any export restrictions from Switzerland or any import restrictions of any other country. Similarly, we make no representations or warranties as to whether any embargoes exist in relation to particular lots.
42. Notices: Any notice or other communication shall be in writing and, if sent by post, shall be deemed to have been received by the addressee on the second working day after posting or, if the addressee is outside Switzerland, on the fifth working day after posting. If any written notice is delivered by hand, it shall be treated as having been received at that time and, if any written notice is sent by facsimile, it shall be deemed to have been received 24 hours after sending. Any notice sent to us shall be sent to 2 Rue François-Diday, 1204 Geneva. Any notice which we send to you may be sent to your last address known to us.
43. Severability: In the event that any provisions of these Conditions of Business should be held unenforceable for any reason, the remaining conditions shall remain in full force and effect.
44. Personal details: If we so request, each of the 'buyer', the 'seller' and any bidder at auction agree to provide (in a form acceptable to us) written confirmation of their name, permanent address, proof of identity and creditworthiness.
45. Introductory commissions: We reserve the right to pay out of our remuneration a fee to any third party introducing clients or property to us.
46. Data Protection: Sotheby's will use information provided by its clients (or which Sotheby's otherwise obtains relating to its clients) for the provision of auction and other art-related services, loan and insurance services, client administration, marketing and otherwise to manage and operate its business, or as required by law. This will include information such as the client's name and contact details, proof of identity, financial information, records of the client's transactions, and preferences. Some gathering of information about Sotheby's clients will take place using technical means to identify their preferences in order to provide a higher quality of service to them. Sotheby's may also disclose the client information to other Sotheby's Companies and/or third parties acting on their behalf to provide services for the purposes listed above.
Sometimes, Sotheby's may also disclose this information to carefully selected third parties for their own marketing purposes. If you do not wish your details to be used for this purpose, please email enquiries@sothebys.com.
If the client provides Sotheby's with information that is defined by European data protection laws as "sensitive", the client agrees that it may be used for the purposes set out above.
In the course of these disclosures, personal data collected in the European Economic Area may be disclosed to countries outside the European Economic Area. Although such countries may not have legislation that protects a client's personal information, Sotheby's shall take great care to keep such information secure and in accordance with European data protection principles. By agreeing to these Conditions of Business, the client is agreeing to such disclosure.
Under European data protection laws, a client may object, by request and free of charge, to the processing of their information for certain purposes, including direct marketing, and may access and rectify personal data relating to them and may obtain more information about Sotheby's data protection policies by writing to Sotheby's, 34-35 New Bond Street, London W1A 2AA, or 1334 York Avenue, New York, NY 10021, Attn: Compliance, or emailing enquiries@sothebys.com.
47. Miscellaneous:
(i) The headings and introduction to these Conditions of Business do not form part of the Conditions of Business, but are for your convenience only.
(ii) No act, failure to act or partial act by 'Sotheby's' shall be deemed a waiver of any of its rights hereunder.
(iii) The singular includes the plural and vice versa where the context requires.
(iv) These Conditions of Business shall not be assignable by the 'buyer' or the 'seller' without the prior written agreement of 'Sotheby's'. However, these Conditions of Business shall be binding on any of your successors, assigns, trustees, executors, administrators and representatives.
(v) Where terms have special meanings ascribed to them, a glossary may appear in the online sale information for the relevant online only auction.
February 2018
