Seller agrees to sell and Buyer agrees to buy the Work on the Terms set out in this document.
1. DEFINITIONS OF TERMS
“Address”: the address to which both parties have agreed in writing the Work is to be delivered;
“Agreement”: the agreement for the sale of the Work set out on the Invoice;
“Buyer”: the person(s) named on the Invoice;
“Delivery”: when the Work is received by Buyer or Buyer’s agent at the Address;
“Invoice”: the sales invoice overleaf;
“Invoice Address”: the address which Buyer has requested on the Invoice;
“Local Taxes”: local import taxes and duties, and local sales and use taxes, including VAT where applicable;
“Price”: the Invoice price of the Work;
“Seller”: Frank Partridge, Avercliff Limited;
“Terms”: the terms and conditions of sale in this document which include any special terms agreed in writing between Buyer and Seller;
“Third Party Payer” shall have the meaning set out at clause 2.4;
“VAT”: United Kingdom value added tax; and “Work”: the work or works of art detailed on the Invoice.
2. BASIS OF PURCHASE
2.1 The Terms shall govern the Agreement to the exclusion of any other terms and representations communicated to Buyer prior to entering into this Agreement and to Buyer’s own conditions (if any) and constitute the entire agreement and understanding of the parties in relation to the sale of the Work.
2.2 Delivery of the Work will be made following receipt by Seller of the Price in cleared funds. Buyer shall be responsible for all costs of Delivery.
2.3 Seller reserves the right to require Buyer to present such documents as Seller may require to confirm Buyer’s identity.
2.4 Where payment of the Price is made by someone other than Buyer (“Third Party Payer”) Seller may require documents to confirm the identity of Third Party Payer and the relationship between Buyer and Third Party Payer. Seller may decline payments from Third Party Payers.
3. RISK TITLE AND INSURANCE
3.1 Seller shall deliver the Work to the Address. Risk of damage to or loss of the Work shall pass to Buyer on Delivery. Dates quoted for Delivery are approximate and Seller shall not be liable for delay. Time of Delivery shall not be of the essence. Buyer shall provide Seller with all information and documentation necessary to enable Delivery.
3.2 Notwithstanding Delivery and passing of risk, title in the Work shall not pass to Buyer until Seller (1) receives in cleared funds the Price and any other amount owed by Buyer in connection with the sale of the Work; and (2) is satisfied as to the identity of Buyer and any Third Party Payer and its relationship to Buyer.
3.3 If Buyer fails to accept delivery of the Work at the Address at the agreed time (1) Seller may charge Buyer for the reasonable costs of storage, insurance and re-delivery; (2) risk in the Work shall immediately pass to Buyer; and (3) Seller is irrevocably authorised by the Buyer to deposit the Work at the Address if Delivery has not occurred within six months.
3.4 Seller is not responsible for any deterioration of the Work, howsoever occasioned, after risk in the Work has passed to Buyer.
3.5 Unless agreed in writing between the parties, responsibility for insurance of the Work passes to Buyer on Delivery and Buyer acknowledges that thereafter Seller shall not be responsible for insuring the Work.
4.1 The Price shall be as stated on the Invoice. Payment shall be made in full by bank transfer or cheque and is received when Seller has cleared funds.
4.2 Full payment of the Price shall be made to Seller within 30 days of receipt of Invoice. Interest shall be payable on overdue amounts at the rate of 3% per annum above Lloyds TSB Base Rate for Sterling.
4.3 Until full title to the Work has passed, Buyer shall not sell, export, dispose of, or part with possession of the Work.
4.4 Until full title to the Work has passed, Buyer shall hold the Work unencumbered as Seller’s fiduciary agent and bailee and shall: (1) keep the Work at Buyer’s premises separate from the property of Buyer and third parties and identified as Seller’s property and properly stored with adequate security measures; (2) keep the Work comprehensively insured for not less than the Price, have Seller’s interest noted on the policy and provide a copy of such notification to Seller; and (3) preserve the Work in an unaltered state, in particular not undertake any work whatsoever and shall take all reasonable steps to prevent any damage to or deterioration of the Work.
4.5 Until such time as full title to the Work has passed, if Buyer is in breach of clauses 4.3 or 4.4; or (1) Buyer (if it is more than one person, jointly and/or severally) shall enter into, and/or itself apply for, and/or call meetings of members and/or partners and/or creditors with a view to, one or more of a moratorium, interim order, administration, liquidation (of any kind, including provisional), bankruptcy (including appointment of an interim receiver), or composition and/or arrangement (whether under deed or otherwise) with creditors, and/or have any of its property subjected to one or more of appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (to include similar events under the laws of other countries);or (2) Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to Buyer and notifies Buyer accordingly; or (3) Buyer does anything which may in any way adversely affect Seller’s title in the Work, then Seller or its agent may immediately repossess the Work and/or void the sale with or without notice and Buyer will return the Work to Seller’s nominated address (at Buyer’s sole risk and cost), or, at Seller’s option, Seller may enter the premises where the Work is kept to regain possession.
5. REPRESENTATION OF SELLER
5.1 Seller confirms that, to the best of its knowledge and belief, it has authority to sell the Work.
5.2 Buyer agrees that all liability of Seller and all rights of Buyer against Seller in relation to the Work howsoever arising and of whatever nature shall cease after the expiry of five years from Delivery. This paragraph does not prejudice Buyer’s statutory rights.
5.3 Notwithstanding anything in this Agreement to the contrary, Seller shall not be liable to Buyer for any loss of profits, loss of revenue, goodwill or for any indirect or consequential loss arising out of or in connection with this Agreement, whenever the same may arise, and Seller’s total and cumulative liability for losses whether for breach of contract, tort or otherwise and including liability for negligence (except in relation to (i) death or personal injury caused by Seller’s negligence or (ii) fraud or fraudulent misrepresentation by Seller) shall in no event exceed the Price.
5.4 All representations made by Seller as to the authenticity, attribution, description, date, age, provenance, title or condition of the Work constitute the Seller’s opinion only and are not warranted by Seller. Seller accepts no liability as a result of any changes in expert opinion or scholarship which may take place subsequent to entry into this Agreement.
All copyright in material relating to the Work vesting in Seller shall remain Seller’s.
Seller reserves the right to exploit all such copyright.
7. EXPORT AND LOCAL TAXES
7.1 Where the Work is to be exported from the UK by Buyer, this Agreement is conditional on the granting of any requisite export licence or permission, which the parties shall use reasonable endeavours to obtain.
7.2 Where the Work is, or is to be exported from the European Union and VAT has not been charged because, by reason of such intended export, the Work is zero rated or not subject to VAT, both parties shall take all necessary steps to ensure that there is compliance with the time limits and formalities laid down by HM Revenue & Customs and that such documentation as is required, including any necessary proofs of export and Bills of Lading are fully and properly completed. Buyer shall indemnify Seller against any claims made against Seller for VAT or any other expenses or penalties imposed by reason of Buyer’s failure to observe and comply with the formalities referred to herein.
7.3 Unless stated on the Invoice, Buyer shall be responsible for all Local Taxes.
8.1 Buyer shall not be entitled to the benefit of any set-off and sums payable to Seller shall be paid without any deduction whatsoever. In the event of non-payment Seller shall be entitled to obtain and enforce judgment without determination of any cross claim by Buyer.
8.2 Both parties agree that in entering into the Agreement neither party relies on, nor has any remedy in respect of, any statement, representation or warranty, negligently or innocently made to any person (whether party to this Agreement or not) other than as set out in the Agreement as a warranty. The only remedy for breach of any warranty shall be for breach of contract under the Agreement. Nothing in the Agreement shall operate to limit or exclude any liability for fraud.
8.3 The benefit of the Agreement and the rights there under shall not be assignable by Buyer. Seller may sub-contract its obligations.
8.4 Any notice in connection with the Agreement shall be in writing and shall be delivered by hand or by post to Seller’s registered office at the time of posting or to Buyer to the Invoice Address, and shall be deemed delivered on delivery if by hand or on the third day after posting if posted.
8.5 In the case of a consumer contract within the meaning of the Unfair Contract Terms Act 1977, these conditions shall not apply to the extent that they would be rendered void or unenforceable by virtue of the provisions thereof.
8.6 No amendment, modification, waiver of or variation to the Invoice or the Agreement shall be binding unless agreed in writing and signed by an authorised representative of Buyer and Seller.
8.7 Neither Seller nor Buyer intends the terms of the Agreement to be enforceable by a third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
8.8 The Agreement and all rights and obligations of Seller and Buyer under it shall be governed by English Law in every particular and, subject always to the prior application of the arbitration provisions set out in clause 9, both parties agree to submit to the exclusive jurisdiction of the English Courts.
9.1 All claims and disputes relating to, or in connection with, the Agreement are to be referred to a single arbitrator in London pursuant to the Arbitration Act 1996. In the event that the parties cannot agree upon an arbitrator either party may apply to the President of the Law Society of England and Wales for the time being to appoint as arbitrator a Queen’s Counsel of not less than 5 years standing. The decision of the arbitrator shall be final and binding.
9.2 Save that Buyer acknowledges Seller’s right to seek, and the power of the High Court to grant interim relief, no action shall be brought in relation to any claim or dispute until the arbitrator has conducted an arbitration and made his award.