TERMS OF BUSINESS
Thank you for instructing us to act for you as your agent. We aim to provide informed, impartial and trusted advice.
Any service offered and provided by Rosetti Firmenich Art Advisory Limited (“RFAA”) (such as, but not exclusively, assessments, valuations, mediations, acquisitions and sales) are invariably bound to the present Terms of Business. Any contracting party is definitely and without being solicited to do so, compelled to follow these strictly.
This document sets out our standard terms of business and shall supersede all other terms and conditions that may have existed between us. Whenever we work with you these terms and conditions will apply, to the exclusion of all other terms and conditions, unless otherwise agreed in writing.
We only ever act as your agent and never as a principal.
References to “we”, “us” or “our” is a reference to Rosetti Firmenich Art Advisory Limited, a company incorporated in England and Wales with company number 13117338 and whose registered office is at Fourth Floor, 169 Piccadilly, London W1J 9EH. References to “you” or “your” is a reference to the person to whom we are providing our Services and who is required to pay for our Services.
SERVICES AND PRINCIPLES
RFAA is contractually (in verbal form or in writing) mandated to act on your behalf (addressee of our services). RFAA generally assumes the responsibility for your mandates, unless otherwise explicitly agreed upon, in an exclusive way.
RFAA is committed to personally provide the agreed services. RFAA may also where necessary – upon prior agreement and while respecting confidentiality – consult third parties.
As a mediator for works of art, cultural goods, or objects (“Work”) RFAA is not obliged to disclose the seller’s or buyer’s identity. The conditions of acquisition and sale are strictly confidential.
Placed and/or sold Work is consigned to RFAA’s care and remain the property of the legal owner until full payment has been received.
RFAA’s services are invoiced – as per prior concluded verbal or written agreement or approved offer – on a case-by-case basis either a commission on sale, either a fixed price, the applicable percentage(s) of the Sale Price achieved or our pre-agreed fee for the delivery of our Services, excl. VAT.
In case the assignment is being cancelled by you, any work and effort performed so far by RFAA will full-fledgedly be invoiced to you. In case of a prior agreed fixed price, only the effectively performed hours will be billed.
In case the mandator violates the exclusivity clause or the Work is being – against the arrangement – sold to or offered for sale through a third party, RFAA retains the right to stipulate in addition to any work and effort performed so far (as stated above) a commission of 5% of the sales price.
Expenses will be treated separately and will be charged based on receipts.
Payments are to be made to the account of RFAA. Payments in cash are not accepted. The Anti-Money Laundering Regulation applies.
1. WHEN ROSETTI FIRMENICH ART ADVISORY LTD IS RETAINED TO BUY FOR A CLIENT
1.1.1 Unless otherwise agreed with you, we shall buy Work on your behalf as your exclusive agent. You shall not appoint any other person, firm or company as your agent, distributor, franchisee or other intermediary for the provision of the Services during our Engagement. You shall not, without our prior written consent, make offers to purchase or negotiate with or sell the Work to any person, and shall refer all such possible transactions to us.
Whenever you instruct us to advise you on the acquisition of Work we shall provide some or all of the following services to you:
(a) suggesting Work you might want to acquire;
(b) sourcing and buying Work privately, from galleries or at auction for you;
(c) preparing and producing a bespoke Report summarising the quality, condition, Provenance and value of the Work;
(d) conducting due diligence and market analysis into the Work;
(e) negotiating with the owner and/or his agent if purchasing privately, with the dealer if purchasing from a gallery or be authorised to bid on your behalf if purchasing at auction;
(f) overseeing (but not carrying out) all pre-sale and post-sale logistics until the Work is purchased and delivered safely to you;
(g) providing macro-collection strategy and curatorial advice;
(h) helping with decoration projects;
(i) preparing an Introduction to Collecting program if you are a first time buyer,
(j) other services as agreed by you and us (collectively, the “Services”).
and where agreed with you, we may provide these services to you as an agent for an undisclosed principal in order to preserve your anonymity.
1.3 Your Representations and Warranties
1.3.1 Where you instruct us to provide advice, you represent and warrant that from the date of our Engagement to the date of sale:
(i) you shall act at all times in relation to us dutifully and in good faith; (ii) you have, and will have throughout the period of our Engagement, adequate free funds to purchase a Work for the pre-agreed Sale Price plus our Commission and Expenses; (iii) you will pay the Sale Price plus Commission and Expenses to us on demand and where possible at least five (5) Business Days in advance of the anticipated date of sale; (iv) you shall indemnify us, and shall keep us indemnified, on demand against all costs, Expenses and any Tax, VAT or duties (including without limitation import VAT and customs duties) which arise in connection with the export, import and shipping of the Work following the conclusion of the sale and any other liabilities which we may incur as a result of our acting within the scope of our authority under these terms of business as your agent and entering into any contract for sale; (v) on request you will provide us with any and all satisfactory evidence of your identity and, if applicable, of people related to you and the source of your wealth. If you fail to provide us with the information that we request we may be unable to continue acting for you; and (vi) any money used to purchase a Work or to pay our Commission, and any Work you give to us to sell, is not and is not connected with, the proceeds of criminal activity or otherwise from illegal sources.
1.3.2 You acknowledge that we will be relying on the warranties and undertakings given by you and you shall promptly pay and discharge and shall on demand indemnify us against any Loss incurred by us at any time arising out of, resulting from or in connection with a breach of any of the representations and warranties, including but not limited to, the cost of defending or bringing any legal proceedings, and all actions relating to such proceedings.
1.4.1 You authorise us to negotiate and sign or otherwise conclude contracts for the purchase of the Work in your name or on your behalf, without prior reference to you provided the Sale Price is within the Parameters. You authorise us to make payment for the purchase of the Work and any Expenses on your behalf to any Seller and/or auction house, including the payment of any auction house commission (where applicable). You authorise us to make offers and to commit to buy a Work for the Sale Price, subject only to: (a) inspection by you and/or an Independent Specialist; and (b) our being in receipt of the Sale Price, Commission, Expenses, Tax and VAT (if applicable) in cleared funds.
1.4.2 Where we irrevocably commit to buy or guarantee a Work for you on the terms of any contract for sale within the limits agreed with you, you undertake to fully perform that contract for sale and you shall indemnify us and keep us indemnified on demand against all claims, damages and expenses including without limitation all legal and professional costs incurred by us, if you fail or refuse to complete the purchase in accordance with its terms of otherwise in breach or cause us to be in breach of any contract for sale.
1.4.3 If, prior to our irrevocably committing to buy or guarantee a Work, you elect to cancel a sale because the Work is unable to obtain an import/export licence or the Independent Specialist is not satisfied with any Description, detail or attribute of the Work, or the Work was an Unlawful Acquisition, you shall indemnify us and keep us indemnified on demand against all costs associated with the return of the Work to the seller and against all claims, damages and expenses including without limitation all legal and professional costs incurred by us as a result of your notification to us to cancel the sale.
1.4.4 If a Work is sourced and introduced to you by us, you shall not directly or indirectly or through any other person, without our prior written consent, make an offer or negotiate with or buy the Work and shall refer all such possible transactions to us. If you act in breach of this clause, we may forthwith terminate our Engagement and you agree to pay to us on demand or we may deduct from any of your money we hold on account the Commission as liquidated damages plus any accrued Expenses. You confirm the Commission represents a genuine pre-estimate of our loss.
1.5 Price & Commission
1.5.1 We shall not conclude a purchase on your behalf unless you have confirmed that the price is acceptable, except if you provide instructions authorising us to agree a price up to a given amount. In addition to the purchase price, tax including but not limited to VAT, and the resale right royalty, may be due. Any tax and resale right royalty shall be your responsibility. If the Resale Royalty is paid by you to us, we shall pay it to the seller, or directly to the collecting society.
1.5.2 Our Commission is typically a percentage of the total price of the Work we have bought for you and subject to the nature of the transaction either the applicable percentage(s) of the Sale Price achieved and/or our pre-agreed fee for the delivery of our Services. You agree that we may pay a Commission to any party who has assisted us with the purchase of the Work or introduced you to us. You shall pay to us the Commission applicable for the Services performed or, if to be paid separately, within fourteen (14) days of the date of our invoice.
1.5.3 Please note minimum fees are payable in respect of our Services where: (i) we are irrevocably authorised to pay the Sale Price on your behalf to the seller; (ii) you authorise us to retain the amount of our Commission, Expenses, Tax, VAT and any other sums due to us in respect of any other Work bought through us for you from the monies received from you; (iii) if on completion of the purchase of the Work, we accept delivery of the Work on your behalf, we shall be entitled to keep the Work while our Commission, Expenses, Tax, VAT or any other sum due to us in respect of any other Work bought or sold through us for you remains unpaid. After those sums due have been paid, we shall arrange for the delivery of the Work to you.
1.5.4 If you shall, within twelve (12) months after the termination of our Engagement, directly or indirectly purchase or agree to purchase a Work or any part of a Work from a person who was introduced to you by us, then you will immediately pay to us on demand or we may deduct from any of your money we hold on account, a sum equal to our Commission.
1.6 Payment & Expenses
1.6.1 You shall be solely responsible for payment of the Purchase Price of the Work, plus all related charges including but not limited to our commission, expenses and tax (collectively, the “Purchase Price”). You agree to pay the Purchase Price in accordance with the terms of the invoice. You agree to fully compensate us for any loss, damage, claim, liability, judgment, cost or expense incurred by us (including reasonable legal fees) arising from or in connection with your failure to make payment of the Purchase Price.
1.6.2 We shall invoice you for any expenses we incur on your behalf, including any related VAT. Expenses are charges and out of pocket expenses paid or payable by us in respect of and in the course of our Engagement and as a result of our performing the Services including without limitation legal expenses, banking charges and expenses incurred as a result of an electronic transfer of money, charges and expenses for loss and damages cover, insurance, marketing brochures and illustrations, any customs duties, cost of import and export, advertising, travel, packing or shipping costs, reproduction rights’ fees, taxes, levies, costs of testing, searches or enquiries, restoration, conservation, Independent Specialist and/or scholarly opinion, storage charges, removal charges, or costs of collection of the Work from the owner. If you fail to make any payment due to us under these terms of business, then you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment in cleared funds of the overdue amount.
1.7 Our Obligations
1.7.1 We shall exercise reasonable care when providing the Services. You acknowledge that information we provide to you is partly dependent upon the information provided by the seller and such experts as we may consult, the amount of research and any examination or testing we may reasonably and practically carry out prior to a purchase, and the generally accepted opinion of experts available at the time of your purchase of the Work.
1.7.2 You acknowledge and agree that the Work is sold “AS IS”, which means that it is your responsibility to obtain a comprehensive view of its condition. Possible assistance of external experts, after your prior consent, will be charged to you. When the Work is being delivered or handed over personally by us, it is your responsibility to assess its condition. We make no representation and give no warranty, orally or in writing, express or implied (other than those which cannot be excluded by law) with respect to any of the characteristics of the Work, including without limitation, age, authenticity, provenance, condition, quality, rarity, value, historical reference or significance, medium, (recorded in the description of the Work or elsewhere), which are statements of opinion only and not representations of fact and we accept no liability in relation to any of them. Nor do we accept any liability for any matter which is specifically drawn to your attention before the purchase is completed or which your examination of the Work ought to reveal.
1.7.3 The value of art fluctuates over time, we offer no guarantee that you will make a profit when buying a Work. The Work is non-exchangeable and non-returnable. We do not provide condition reports but we can commission them on your behalf. We are under no obligation to sue the seller in the event that the seller does not deliver the Work or transfer ownership to you, or the seller is otherwise in breach of the sale and purchase agreement.
1.8 Your Undertakings
You undertake to us that if you make arrangements to export the Work from the UK, you will comply with HM Customs & Excise regulations, including but not limited to shipping the Work from the UK within the relevant period if the sale is for export and zero-rated for VAT, and to provide us with the relevant proof of export within seven (7) days from the date of shipment of the Work.
1.9 Export & Import
You are responsible for compliance with import and export laws and regulations.
1.10 Sellers’ Obligations
We do not accept any liability for any act or omission by the seller in relation to the sale of the Work to you.
1.11.1 Unless otherwise agreed, you are solely responsible for insuring the Work from the date when ownership of the Work passes to you. You should assume that ownership will pass to you when you make payment for the Work. You shall at your own cost take out and maintain in force at all times during and after our Engagement all-risk fine arts insurance on a wall to wall basis using a general fine arts insurance policy and covering the Work for an insured sum which corresponds with the Sale Price. All claims, whether for full or partial damage, will be based on the Sale Price.
1.11.2 The Insurance Policy must: comprehensively cover the Work against all risks of physical loss or damage including loss, theft and all risks arising both during transit, installation, de-installation and while the Works are on display subject to standard policy exclusions; comprehensively cover the Work until they are delivered to you; and name us as a loss payee. For the purposes of this clause, loss payee shall mean, in the event of a payment being made under the policy in relation to an insured risk, any payments due to us from you will be paid directly by the insurance company.
You agree to defend and hold us and each of our directors, employees, agents and consultants and the seller of the Work harmless from and against, and compensate each of us and them fully for, any and all claims, actions, liabilities, losses, damages, and expenses of any kind (including reasonable legal fees) arising from or relating to (a) any breach or alleged breach (where alleged by us or by a third party) of your representations, obligations and undertakings in these Terms of Business, (b) any act or omissions by the seller of the Work, (c) a Contractor’s act or omission; and (d) physical loss or damage to the Work; (e) any injury, loss or damaged caused to any person by you; (f) our exercising any of our rights, powers and/or duties under clause 15 (Refusal to Buy); (g) our receiving or recovering or seeking to recover the Sale Price; and (h) your fraud.
1.13 Limitation of Liability
1.13.1 We will only assume liability for damages that are due to unlawful intent or gross negligence on our part. We act as a broker between a seller and a buyer and are not liable for any deficiencies or damage for which we are not responsible. Our total liability in contract, tort, misrepresentation or otherwise, arising in connection with the performance or contemplated performance of our Services shall be limited to our commission (excluding any VAT) actually paid by you for the Services in relation to which our liability has arisen.
1.13.2 We waive all liability regardless of the legal reason. We shall not be liable to you for any loss of profits, loss of business, loss of anticipated savings or for any special, indirect, incidental, collateral, or consequential loss, costs, damages, charges or expenses to the fullest extent permitted by law. Without prejudice to the rest of these Terms of Business, no term in these Terms of Business shall be deemed to exclude or limit our liability to you in respect of any fraud or fraudulent misrepresentation made by us, or in respect of death or personal injury caused by our negligent acts or omissions.
1.13.3 We shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence) breach of statutory duty, or otherwise for: (a) any damage to or defect in the Work which is apparent from an inspection of the Work on delivery and/or which occurred while the Work was in our custody or possession; (b) any claim you may have against us on the basis of any oral or written statement made by us (whether made carelessly or not) that is not set out or referred to in these terms of business (or for breach of any warranty given by us not so set out or referred to), unless such statement or warranty was made or given fraudulently; (c) our failing to disclose the identity of any seller or buyer (as applicable), their principal, advisers or agents; (d) an estimate of the value of the Work which is an expression of our opinion of the potential Sale Price and is not an estimate of value nor does it take account of any VAT or other premium payable. You acknowledge any estimate is not relied on by you as an indication of the actual selling price or value of the Work; (e) any lack of conformity with or inaccuracy, error, mis-description or omissions relating to the Work made by you and whether made before or after our Engagement; (f) woodworm present at the time of sale and any damage caused as a result of woodworm; (g) changes in atmospheric pressure; (h) any loss of goodwill, present or prospective revenue, profits or anticipated sales, whether arising during our Engagement or as the result of any decision to terminate our Engagement; (i) any expenditure, investment or commitment made in connection with our Engagement; or (j) any Loss that is an indirect or secondary consequence of any act or omission by us.
1.13.4 Our total liability for direct damage to a Work caused by our negligence in connection with these terms shall be limited to the lower of £25,000 or the Commission. Except as expressly stated in these Terms of Business, all conditions, warranties and other terms and all representations express or implied by statutes, common law or otherwise with respect to the Services are excluded to the fullest extent permitted by law.
1.15 Refusal to Buy
We may refuse to buy a Work on your behalf if we have reasonable cause to believe that: (a) we and/or you may be or are restrained by order of the court or other competent legal authority in respect of the Work or may be or are otherwise not legally entitled to buy the Work (as applicable); or (b) you are in breach of any of the warranties and undertakings set out in these terms of business; or (c) the Work is a Counterfeit, has an Incorrect Attribution or has been Unlawfully Acquired. We will give you notice of any decision as soon as reasonably practicable. In addition to our rights, we may, by written notice to you, refuse to buy a Work without reason.
1.16 Right of First Refusal
If within three (3) years from the date of your purchase of a Work through us, you decide to re-sell the Work, whether directly or through an agent, you shall offer the Work to us first for a price equal to its then fair market value agreed between you and us in good faith. We shall have the right to buy the Work from you, or to sell it on consignment on your behalf, before you offer it to anyone else.
1.18.1 This agreement shall become effective from the date we commence our Services and it shall continue until (a) the sale of the Work and the completion of our post-sale Services; (b) one party gives the other party written notice to terminate; (c) or terminated earlier. Each of you and us shall have the right to terminate our provision of Services at any time by giving notice in writing to the other party. Upon notice of termination, our Services shall be discontinued, and you shall pay to us fair and reasonable compensation for work-in-progress together with any outstanding unpaid invoices. If at the date of termination, you are bound by any contract to purchase one or more Works, you shall honour those obligations. The notice period shall be not less than thirty (30) Business Days. During the notice period we will continue to have authority to carry out our Services and in the event any contracts with any third party require termination and such termination gives rise to withdrawal fees, penalties or other payments you shall pay us the cost of any fees that cannot be cancelled.
1.18.2 Without affecting any other right or remedy available to it, we may terminate this agreement with immediate effect by giving written notice to you if: (a) you commit a material breach of any of these terms of business which breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of five (5) Business Days after being notified in writing to do so; (b) you are declared bankrupt or make any arrangement with or for the benefit of your creditors or have a county court administration order made against you; (c) you make a resolution for your winding up, make an arrangement or composition with your creditors or make an application to a court of competent jurisdiction for protection from your creditors or an administration or winding up order is made or an administrator or receiver is appointed in relation to you; (d) you are incapacitated (including by reason of illness or accident) and we are unable to receive your instructions for a period of ten (10) Business Days; (e) you commit any fraud or dishonesty or act in a manner which in our opinion brings or is likely to bring us into disrepute or is materially adverse to the interests of our other clients; (f) you commit any offence under the Bribery Act 2010 or an actual or suspected offence of any Anti-Money Laundering Legislation; and (g) any equivalent offence, event or action as detailed above in any other applicable jurisdiction.
1.18.3 Upon termination and subject to payment of any sums owed by you to us we shall return the Work (if it is in our custody) at your cost to your premises within twenty-one (21) days of the date of termination. We shall be entitled to exercise a lien over the Work for any sums owed by you to us.
2. WHEN ROSETTI FIRMENICH ART ADVISORY IS RETAINED TO SELL FOR A CLIENT
You grant us the exclusive right worldwide to offer the artworks for sale on your behalf (“Work”), and to sell the Work in accordance with our Conditions of Sale (by which you agree to be bound). Whilst we act as your exclusive agent, you shall not instruct anyone else to market or sell the Work or market or sell it/them yourself, and you shall forward to us any offer you receive for the Work.
Whenever you instruct us to advise you on the sale of Work we shall provide you with some or all of the following services to you:
(a) prepare and produce a bespoke Report assessing the available sale options of the Work;
(b) provide in-depth market analysis and strategic advice in relation to the Work;
(c) negotiate the terms of the consignment of the Work with an auction house or private sales agent or dealer (as applicable) or the terms of sale if the Work is being sold directly to a person;
(d) oversee (but not carry out) all pre-sale and post-sale logistics until the Work is sold and delivered safely to the buyer or the buyer’s agent (as applicable);
(e) ensure your anonymity is protected by representing ourselves to third parties as agent for an undisclosed principal, unless otherwise agreed;
(f) liaise with legal and other professional advisors in relation to the sale of the Work;
(g) liaise with heritage and tax advisors if the Work is eligible for any of the tax incentives managed by Arts Council England, including acceptance in lieu, conditional exemption, private treaty sales or cultural gifts;
(h) assist with arranging and agreeing the terms for a museum gifts and loans; and
(i) audit and value your collection.
2.3 Your Representations and Undertakings
You represent to us and the buyer(s) of the Work that now and at the date of payment of the amount due to you: (i) you are the sole legal and beneficial owner of the Work with unrestricted right to possession of the Work, or are properly authorised to sell the Work by the sole legal and beneficial owner(s) with unrestricted right to possession and if you act as agent or fiduciary of the owner of the Work (whether named or un-named), you accept joint and several liability with the owner; (ii) you are able to, and shall, transfer to the buyer good and marketable title to, and possession of, the Work free from any third party rights or any liens, charges, encumbrances, claims or potential claims; (iii) the Work is not a Counterfeit; (iv) the Work is not the subject of an Incorrect Attribution; (v) you have furnished us with all of the material information and documents in your possession or control concerning the Work’s condition, provenance, literature, exhibition history and authenticity and all such information is accurate to the best of your knowledge and belief; (vi) you have notified us in writing of any concerns expressed by third parties in relation to the ownership, condition, authenticity, export or import of the Work; (vii) you are unaware of any matter or allegation which would render the description of the Work inaccurate or misleading; (viii) you are not aware of any challenges or disputes (past, pending or threatened) relating to the attribution, authenticity, description or title of the Work; (ix) you have not received any communication from or with any third party regarding the possibility of any Title Claim or Encumbrance over the Work; (x) the Work has been legally exported from: (1) its/their place of origin; and (2) the place in which you acquired the Work; and (3) legally imported into the United Kingdom (if applicable); (xi) the Work is not the national patrimony of its/their place of origin; (xii) the Work has not been confiscated by any governmental or other authority at any time and is not “confiscated property” or “stolen property” within the meaning of any United States deferral or state law, or the laws of any other country; (xiii) no import, export or other laws, rules or regulations of any governmental or other authorities have been violated in connection with the Work; (xiv) any and all Taxes due on the Work have been paid; (xv) you are acting in accordance with all Sanctions; (xvi) you have not restored, repaired or altered any part of the Work, nor consented thereto, and to the best of your knowledge, no other party has performed any restoration, repair or alteration; (xvii) these terms of business do not contain any untrue statement of fact or omit to state any fact necessary in order to make the information contained in these terms of business not misleading; (xviii) there are no restrictions (whether copyright or otherwise) affecting the Work or our right to photographs or illustrate the Work or reproduce (in any manner and in any media) photographs or illustrations or any text of any information or Description of, about or relating to the Work provided by you or on your behalf.
2.4.1 We shall consult with you on all material issues concerning your Work including any offers or counter offers we make or receive on your behalf. Subject to your approving the Sale Price, you authorise us to negotiate and sign or otherwise conclude contracts for the sale of the Work in your name or on your behalf, provided the Sale Price is within the Parameters. You authorise us to issue invoices on your behalf to the buyer or their agent for the sale of the Work and agreed to promptly provide us with all the information we require in order to correctly issue the invoice on your behalf. Unless otherwise agreed, you authorise us to collect payment (or any instalment thereof) for the sale of the Work on your behalf.
2.4.2 We are authorised to offer the Work to such prospective buyers and/or their agents as we may decide, subject to notified Parameters. You authorise us to accept offers and to commit to sell the Work for a net return to you of the Sale Price, subject only to: (a) clause 16 (Refusal to Sell); and (b) the Work being in our control.
2.4.3 You shall not during our Engagement, without our prior written consent, make offers or quotations or negotiate with or sell, or agree to sell, the Work to any person, and shall refer all such possible transactions to us. If you act in breach of this clause, we may forthwith terminate our Engagement and you agree to pay to us on demand (or we may deduct from any of your money we hold on account) our Commission as liquidated damages plus any accrued Expenses. You confirm that our Commission represents a genuine pre-estimate of our loss.
2.5 Sale Price & Commission
2.5.1 Unless otherwise agreed, you authorise us to sell the Work for a price which after deduction of our commission, any VAT on our commission and the Resale Royalty if applicable, will result in a net price to you that will be no less than the amount agreed by you and us in advance (the “Net Price”).
2.5.2 Unless otherwise agreed, our commission on the sale shall be the difference between (i) the sale price paid by the buyer of the Work (net of tax) and (ii) the Net Price, less any VAT on our commission and the Resale Royalty if applicable (the “Commission”), provided that our Commission shall not exceed 20% of the sale price paid by the buyer (net of tax). You agree that we may pay a Commission to any party who has assisted us with the sale of the Work or introduced you to us. You are liable to pay any artist’s Resale Royalty due upon the sale of the Work which we will deduct from the Sale Price and remit to the relevant collecting society on your behalf.
2.5.3 You authorise us to retain from the Sale Price any monies due to us from you including the Commission, Expenses, Tax, VAT and any other sums due to us in respect of any other Work sold through us for you; we may retain the Sale Price until you deliver to us the Work and/or any relevant documentation reasonably required by us in relation to the Work; if before the Sale Price less those deductions have been distributed to you, the buyer or any other person makes a claim against either you or us in relation to the Work, we may withhold distribution of the Sale Proceeds to you until such time as the claim has been resolved and you agree to indemnify us and keep us indemnified on demand against defending any such claim (whether threatened, issued or in contemplation) including without limitation all legal and professional costs, Expenses, liabilities and other losses incurred by us, our officers, employees or agents.
2.5.4 We reserve the right to modify our Commission from time to time on written notice to you (Modification Notice). Any modification will not apply to any purchase or sale Services and will only apply to new instructions after the date of the Modification Notice. Subject to our notifying you in advance where possible, or required by law or applicable regulation, we reserve the right to share our Commission with third parties.
2.5.5 If you, within twelve (12) months after the termination of our Engagement, directly or indirectly sell or agree to sell the Work or any part of the Work to a person who was approached by us on your behalf during our Engagement then you will immediately pay to us on demand (or we may deduct from any of your money we hold on account) the Commission. You confirm that the Commission represent a genuine pre-estimate of our loss. A person will be considered as having been approached by us if we have during our Engagement and on your instruction written to, spoken to or shown the Work or part of the Work or an image thereof to the prospective buyer or a representative of the buyer. In the absence of a contrary agreement, the Commission shall be paid to us in the same currency as the Sale Price.
You authorise us to incur any reasonable Expenses necessary to enable us to perform the Services. Where we need to incur any Expenses that are outside the ordinary cause of our Services, we shall seek your prior approval before incurring any Expense. We reserve the right to require an advance payment on account of Expenses. Where such payment has been requested, work will not commence or continue under these terms of business until payment has been received in cleared funds. Similarly, if payment is requested on account of an Expense, that Expense will not be incurred until the payment has been received in cleared funds. All sums payable under these terms of business are exclusive of VAT which, where applicable, will be payable at the appropriate rate.
2.7.1 Unless otherwise agreed, you shall at your own cost take out and maintain in force at all times during and after our Engagement all-risk fine arts insurance on a wall to wall basis using a general fine arts insurance policy and covering the Work for an insured sum which corresponds with the Sale Price.
2.7.2 Unless otherwise agreed, the Work will remain in your possession or control until delivery to the buyer. The Work entrusted in our care is being insured based on its estimated value and volume at your expense. The same applies for transit risk and shipping insurance. Insurance value and the condition of the Work will be previously agreed upon by mutual consent. We reserve the right to refuse the custody of any Work.
The Insurance Policy must: comprehensively cover the Work against all risks of physical loss or damage including loss, theft and all risks arising both during transit, installation, de-installation and while the Works are on display subject to standard policy exclusions; comprehensively cover the Work until they are delivered to the buyer; and name us as a loss payee. For the purposes of this clause, loss payee shall mean, in the event of a payment being made under the policy in relation to an insured risk, any payments due to us from you will be paid directly by the insurance company.
2.7.3 You will need to provide us with an official confirmation from the insurance company. You will maintain insurance against all risks of physical loss or damage to the Work in an amount at least equal to the Net Price, until possession of the Work passes to the buyer.
You acknowledge that we will be relying on the warranties and undertakings given by you and you shall promptly pay and discharge, and shall on demand indemnify us against any Loss incurred by us at any time arising out of, resulting from or in connection with a breach of any of the representations and warranties, including but not limited to, the cost of defending or bringing any legal proceedings, and all actions relating to such proceedings. We may also carry out for your own benefit (possibly without reference to you) our own investigations, research, tests or engage an Independent Specialist(s) or conduct other examinations of the Work, but we are under no obligation whatsoever to do so. If we choose to do so without your prior approval, you shall not have to pay for it. We shall offer all reasonable assistance to you in enforcing the buyer’s warranties and representations contained in any contract for sale including the failure of the buyer to pay the Sale Price.
2.9.1 Where we irrevocably commit to sell the Work for you within the agreed Parameters, you undertake to fully perform the sale and you shall indemnify us and keep us indemnified on demand against all claims, damages and expenses including without limitation all legal and professional costs incurred by you, if you fail or refuse to complete the sale or you are otherwise in breach or cause us to be in breach of any contract for sale of the Work. If the buyer is unable to obtain an import/export licence for the Work then the buyer shall be entitled to withdraw from the purchase of the Work in which case the sale shall not proceed and all obligations of the parties under any contract for sale shall cease. You agree to pay us all Expenses incurred up to the date of the buyer’s withdrawal. If the buyer elects to cancel the sale, we shall return the Sale Price to the buyer within fourteen (14) days of receiving the Work back from buyer in exactly the same condition as it left us, or if the Work has/have not left our custody, within fourteen (14) days of the buyer notifying us of its election to cancel the sale.
2.9.2 You shall indemnify us and keep us indemnified on demand against all costs associated with the return of the Sale Price to the buyer and the return of the Work to you and against all claims, damages and expenses including without limitation all legal and professional costs incurred by us as a result of the buyer’s notification to us to cancel the sale.
2.10 Payment, Rescission
2.10.1 Unless otherwise agreed, and subject to the remainder of this paragraph, if the Work is sold, we will send you the amount due to you within fourteen (14) business days of receiving payment from the buyer in cleared funds except where (i) we receive notice that the buyer intends to rescind the sale, or (ii) a third party makes a claim for the Work or the sale proceeds, or (iii) in our reasonable judgment, (a) doubt has arisen as to the Work’s authenticity, authorship or attribution, (b) any of your representations is materially inaccurate, or we reasonably doubt its accuracy or (c) you have breached, or indicated that you intend to breach, any provision of these Terms of Business in a material respect.
2.10.2 You agree that (i) we have no obligation to pay you if the buyer does not pay us, (ii) we do not guarantee that payment will be received from the buyer or if decided otherwise, the buyer will pay you, (iii) we are under no obligation to investigate, prior to a sale, the ability of the buyer to pay, and (iv) we are under no obligation to sue or collect payment if the buyer does not pay you or us. We may, with notice to you, rescind a sale where we reasonably believe that there is a material breach of your representations or there is merit to a third party adverse claim to the Work. Within fourteen (14) days of our notice to you, you will return to us any sum paid to you for the relevant Work, and we will arrange the return of the Work to you unless we are unable to do so for a reason beyond our control.
2.11 Ownership Transfer
The Work and title to the Work will only pass to the buyer on receipt by us or you in cleared funds of the full Sale Price plus any other agreed costs payable by the buyer. Once the buyer has paid the Sale Price and all other sums due to you or us, the Work will be released to the buyer.
The Work shall either remain at premises specified by you and at your own risk unless you agree to deliver the Work to us. Where required, we shall accept delivery of the Work and you shall be liable for the costs of storage. From the time the Work is delivered into our custody, we will have possession of it as bailee and owe you a duty of care until title to the Work passes to the buyer. You authorise us to enter into a contract with a reputable storage contractor for the storage of the Work and to comply with the terms of the contract and in particular to pay the charges due while the Work is being stored on your behalf, such cost to be reimbursed by you. Unless otherwise agreed in writing you shall be responsible for all costs of packing and delivery of the Work including any delivery of the Work to us from a buyer or delivery of the Work to a seller and if the Work is not sold, the delivery of the Work back to your premises.
2.13 Promotion & Marketing
We may at our discretion produce on your behalf marketing or promotional material in relation to the Work but we are under no obligation to do so unless required to by you. The cost of preparing the marketing or promotional material will become an Expense. The copyright in the text and the photographs and illustrations of the Work contained in any marketing or promotional material belongs to us. You will not reproduce or permit anyone else to reproduce such text, photographs or illustrations without our prior written consent. We may at our absolute discretion revise any marketing or promotional material from time to time. You will not produce or issue or cause to be issued any marketing or promotional material nor make nor cause to make any public announcements relating to the Work during our Engagement, unless agreed in writing by us.
2.14 Limitation of Liability
2.14.1 We will only assume liability for damages that are due to unlawful intent or gross negligence on our part. We act as a broker between a seller and a buyer and are not liable for any deficiencies or damage for which we are not responsible. Our total liability with respect to any Work for any cause whatsoever shall not exceed the amount of the Commission paid to us. We waive all liability regardless of the legal reason. We shall not be liable to you for any loss of profits, loss of business, loss of anticipated savings or for any special, indirect, incidental, collateral, or consequential loss, costs, damages, charges or expenses, to the fullest extent permitted by law. We waive any liability for any third-party claim made against you in relation with the services provided by us.
2.14.2 The presentation of the Work, that are to be placed, in emails, files, lists or fact sheets produced by us will be compiled with the utmost possible care and to the best of our knowledge and belief. However, we will not assume any liability for its content or the quality of the images.
2.14.3 No term in these Terms of Business shall be deemed to exclude or limit our liability to you in respect of any fraud or fraudulent misrepresentation made by us, or in respect of death or personal injury caused by our negligent acts or omissions.
2.15 Refusal to Sell
We may refuse to sell Work if we have reasonable cause to believe that: (a) we and/or you may be or are restrained by order of the court or other competent legal authority in respect of the Work or may be or are otherwise not legally entitled to sell the Work; or (b) you are in breach of any of the warranties and undertakings set out in these terms of business; or (c) the information about the Work given to us by you is inaccurate or misleading in any material respect; or (d) the Work is a Counterfeit, has/have an Incorrect Attribution or has/have been Unlawfully Acquired. We will give you notice of any decision as soon as reasonably practicable. In addition to our rights, we may, by written notice to you, refuse to sell the Work without reason. If we exercise this right after your delivering the Work to us, we will reimburse you your reasonable expenses directly incurred by you in connection with that delivery and the collection and removal of the Work from our custody and/or control.
If we are unable to sell the Work within six (6) months of you instructing us to do so, unless otherwise agreed, our agency relationship will terminate. Upon termination, you agree that we shall continue to have your authority to sell the Work under these Terms of Business to any persons with whom we commenced negotiations prior to termination, such a sale shall bind on you, and we shall be entitled to the Commission on that sale. Upon termination and subject to payment of any sums owed by you to us we shall return the Work (if it is in our custody) at your cost to your premises within twenty-one (21) days of the date of termination. We shall be entitled to exercise a lien over the Work for any sums owed by you to us.
3. MARKET INTELLIGENCE AND INSIGHT
3.1 Whenever you instruct us to provide an analysis of the art market we shall provide some or all of the following services to you:
(a) research the performance of a particular sector of the art market;
(b) research and assess the individual performance of an individual artist;
(c) identify underlying trends within particular sectors of the art market;
(d) analysis the performance of auction houses within specific sectors of the art market;
(e) judge the performance of art versus other indices.
4. COLLECTION MANAGEMENT
4.1 Whenever you instruct us to provide collection management services we shall provide some or all of the following services to you:
(a) collection audits;
(d) arranging museum and exhibition loans;
(e) long-term collection planning;
(f) acting as a point of liaison with legal and professional advisors;
(g) curatorial assistance including advice regarding shipping, import/export implications, research, framing, conservation, lighting, installation, security and storage; and
(h) logistics management and administration.
4.2 We shall usually provide our collection management service on a fixed-fee basis.
4.3 Any fees in relation to the loan of a Work to a museum or exhibition, or any other collection management services fee shall be agreed with you separately.
4.1 In providing the Services, we may be required to prepare a Report(s).
4.2 The opinions in the Report are given on the assumption that your representations and warranties in respect of the Work are complete, true and correct in all respects at the date of the Report. You acknowledge and agree that in our preparing the Report and performing our Services, we will use and rely on the information you provide and any other information available from public and non-public sources, without verifying that information.
4.3 You acknowledge and understand information can change without notice and we do not guarantee the accuracy of the information in our Reports, including information provided by third parties, at any particular time.
4.4 Please note the value of art can go down as well as up and you may not get back the money you paid for the Work. You must not rely on the information in the Report or any other opinion we give to you verbally or in writing to make a financial or investment decision. Past performance is not necessarily indicative of future performance. Before making any decision, we recommend you take into account your particular objectives, financial situation and individual needs. An investment in art is not regulated and will not be covered by the Financial Services Compensation Scheme. We do not offer advice about the suitability of a Work as an investment and you should carry out your own due diligence before committing to an investment. Should you require financial advice you should consult a suitably qualified financial advisor.
4.5 We do not give any warranty or representation nor assume any responsibility as to the accuracy, reliability or completeness of information which is contained in our Reports or any other statement or opinion we give. Any reference to the Work, the art market or any other information contained in the Report is based on our judgement and opinion only.
4.6 Except insofar as any liability under statute cannot be excluded, we do not accept any liability for any error or omission in our Reports or in relation to our opinion for any resulting loss or damaged you or any other person suffers and we accept no liability for any statement, representation or opinion given by any third party, even if we have placed reliance on it in forming our opinion in the Report.
4.7 You accept that: (i) you are only permitted to use our Report and the Intellectual Property contained therein for the purposes of and during these terms of business and only as authorised by us with our express written consent; (ii) other than to that extent, you have and shall have no right to use or to allow others to use our Report or Intellectual Property or any part of it; (iii) you shall not disclose the contents or existence of the Report to any other person without our prior written consent; (iv) you shall not do or omit to do or authorise any third party to do or to omit to do anything which could invalidate, infringe or be inconsistent with our Intellectual Property.
Unless compelled by order of a Court or governmental authority or unless the information is already in the public domain, you and we shall keep the terms of our dealings, the sale of any Work and any purchase agreement confidential except that you and we may disclose the terms of such agreement to our employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these terms of business. You shall not use our confidential information for any purpose other than to exercise your rights and perform your obligations under or in connection with these terms of business. Unless otherwise agreed in writing, you acknowledge and agree we shall not be required to disclose the identity of the seller(s) and the buyer(s) or their principal, advisers or agents to you, even if the information is known to us, and you waive any right you may have to require us to disclose this information. Such failure by us to disclose this information shall not constitute a breach of our agency.
6. LAW AND JURISDICTION
These Terms of Business and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the English law. In the event of a dispute arising under or in connection with these Terms of Business (including non-contractual disputes or claims), you irrevocably (i) submit to the exclusive jurisdiction of the English courts to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation, (ii) agree that we shall have the right to bring proceedings in any Courts within or outside England and Wales, and (iii) waive any objection to the jurisdiction of such Courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
7. DATA PROTECTION
7.1 During your interactions with us, you may provide us with personal data about yourself (and possibly others) to facilitate business between us. Such data may include your name, address, date of birth, contact numbers, billing address and email addresses.
7.2 Any such personal data may be used by us for the provision of our services (including as described under these Terms of Business), billing and other administrative purposes. Such personal data may also be used by us to provide you with information about us and our services (including contacting you via email, telephone or post) and to help us understand your needs and objectives.
7.3 If you do not wish to receive information about us and our services, please contact us at  or use the unsubscribe function contained within our communications.
8.1 You acknowledge and agree to comply with any and all applicable Anti-Money Laundering Legislation and agree to cooperate fully with us in order to assist us in our compliance with all applicable obligations under the Anti-Money Laundering Legislation. You will also comply with our Anti-Money Laundering Policy, which is located on our website, and which contains further information on how to comply with applicable Anti-Money Laundering legislation. We are required to undertake due diligence measures concerning our clients and this may include evidence of your identity and obtaining information about persons who have significant interests in or control over the management of any individual assets or affairs, including trusts, corporation entities, partnerships and other legal persons. Until our due diligence is completed, we may be unable to undertake any work and to receive payments from you. If we begin acting pending completion of due diligence, we may have to cease acting if this is not completed within the time limits we advise.
8.2 If we are carrying out a transaction with you, we may ask you to explain how the transaction or Work is funded and, in some cases, we may ask you to provide supporting documentation. Our expectation is that any funds from the transaction will come from an account in your name. If funds are provided by a third party, further due diligence will be required, and this may cause a delay.
8.3 In accordance with Anti-Money Laundering Legislation and our own procedures, where knowledge or suspicion of money laundering, terrorist financing or sanctions issues arise, or in the light of other circumstances we believe there may be reputational damage in continuing to act, we may be obliged to or may decide to cease or suspend acting and/or report information to the appropriate authorities, possibly without telling you or explaining why.
8.4 Any personal data obtained by us solely for the purposes of complying with Anti-Money Laundering Legislation or our procedures will only be used by us for the purpose of preventing money laundering and terrorist financing or as otherwise permitted by any other enactment.
9. MISCELLANEOUS PROVISIONS
9.1 Nothing in these terms of business shall be deemed to create a partnership or joint venture between us. Where these terms of business are addressed to more than one person, each shall be jointly and severally liable for the Commission, Expenses and all other obligations under these terms of business and any sale contract or other document we enter into on your behalf. You acknowledge that in entering into these terms of business you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms of business. Nothing in this clause shall limit or exclude any liability for fraud.
9.2 Our failure or delay in enforcing or exercising any power or right under these terms of business will not operate or be deemed to operate as a waiver of our rights under it except to the extent of any express waiver given to you in writing. Any such waiver will not affect our ability subsequently to enforce any right arising under these terms of business.
9.3 Any notice or other communication to be given under these terms of business must be in writing and may be delivered by hand or sent by first class post and/or air mail and/or email (if to us marked for the attention of the Director to Dudley House, 4th Floor 169 Piccadilly, London W1J 9EH.
9.4 If any provision or part-provision of these terms of business is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such a modification is not possible, the relevant provision or part-provision shall be deemed deleted. These terms of business and any rates of Commission supplied to you constitute the entire agreement between us with respect to our appointment as your agent for the Services may only be modified by a document in writing signed by or on behalf of us both. Any modification to or deletion of a provision or part-provision shall not affect the validity or enforceability of the rest of the terms of business.
9.5 These terms are binding on your successors, assigns and representatives. No term in these Terms of Business shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by anyone other than you. These Terms of Business set out the entire agreement between us and you in respect of the Services and transactions contemplated therein and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements between us and you relating to the subject matter of these Terms of Business.