Terms Of Business
Thank you for instructing us to act for you as your agent. We aim to provide informed, impartial and trusted advice. Integrity, discretion and exceptional client service are at the heart of our ethos.
This document sets out our standard terms of business and shall supersede all other terms and conditions that may have existed between us and you. 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 Beaumont Nathan Art Advisory Limited, a company incorporated in England and Wales with company number 08747574 and whose registered office is at Eighth Floor, 6 New Street Square, New Fetter Lane, London EC4A 3AQ. 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.
- DEFINITIONS AND INTERPRETATION
The following definitions and rules of interpretation apply in these terms of business.
Anti-Money Laundering Legislation: includes the Proceeds of Crime Act 2002 (as amended by the Serious Organised Crime and Police Act 2005), the Money Laundering and Terrorist Financing (Amendment) Regulations 2019 and the Terrorism Act 2000.
Artist Resale Right(s): means the right(s) for an artist (and their successors in title) to receive a percentage of the sale price, net of tax, whenever their work (in which copyright subsists) is resold.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commission: subject to the nature of the transaction either the applicable percentage(s) of the Sale Price achieved or our pre-agreed fee for the delivery of our Services.
Counterfeit: in respect of the Work, an imitation, fake or forgery or artwork that is in any other respect not original or in respect of which the authorship, origin, date, age, period, culture, source or any other means of identification and/or value, is not materially the same as reflected in the Description.
Data Protection Law: the Data Protection Act 2018 (UK) and the General Data Protection Regulation ((EU) 2016/679 (“GDPR“)), as amended from time to time and any other applicable legislation.
Description: the description of the Work.
Encumbrance: any mortgage, pledge, bond, lien, charge, assignment, hypothecation, encumbrance, retention of title arrangement or security interest or any other agreement or arrangement having the effect of conferring security or granting any rights exercisable by any third party.
Engagement: as defined in clause 2.5.
Expenses: 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.
Incorrect Attribution: the attribution of the Work is or is subsequently found to be incorrect for any reason.
Independent Specialist: a suitably qualified third party we engage to inspect the Work.
Intellectual Property: copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights owned or used by us, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Introduction to Collecting: a bespoke guide to collecting art, highlighting potential pitfalls.
Loss: any claim, damage (including damage to reputation and goodwill), demand, expense, fee, fine, payment, proceeding, liability, loss, penalty or other sanction of a monetary nature other than Taxes.
Parameters: any agree written parameters regarding the Sales Price and/or the Services including, but not limited to, a minimum price and upper price for which a Work can be sold, offered, bid or bought.
Provenance: the history of the Work.
Report: a bespoke report prepared by us in connection with a specific Work.
Sale Price: the pre-agreed amount the Work is offered, reserved, sold or bought for (as applicable), not including the cost of any Commission or Expenses. The Sales Price will be agreed either in writing.
Sanctions: all sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing):
(a) administered, imposed or enforced by the United States Government; or
(b) imposed by law or regulation of the Council of the European Union, the United Nations or its Security Council, the United Kingdom or Canada.
Services: the applicable art advisory services of the type and specification described in clause 3.
Tax: any tax, levy, impost, duty, or other charge or withholding of a similar nature in any jurisdiction (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) and “Taxes” and “Taxable” shall be construed accordingly.
Title Claim: any claim or other assertion by any third party that it is the owner of, or otherwise has an interest (whether legal or beneficial) in, or holds a superior right of ownership than you to the Work, for whatever reason; or any right to any Encumbrance over the Work.
Unlawful Acquisition: means
(a) the acquisition of the Work by a person or persons from the lawful owner of such Work by means of theft (including looting) or other illegal taking; or
(b) any illegal or unlawful action constituting or effecting an involuntary or forced taking, sale, abandonment or conversion, whether during a period of armed conflict or otherwise; or
(c) any illegal or unlawful action constituting a requisition, confiscation or an expropriation of the Work, arising under or pursuant to any law, regulation or policy of any government or authority engaging in any such illegal action (whether or not regarded by the government or authority engaged in the taking as legal at the time the action was taken), whether during a period of armed conflict or otherwise; or
(d) any exportation of the Work from, or importation of the Work into, any nation which is not in compliance with any applicable law, regulation or policy of such nation or the nation from which the Work was exported;
(e) the acquisition or sale of the Work by a person who is subject to an unexplained wealth order or is being investigated by the Financial Conduct Authority, National Crime Agency (UK), or any other equivalent authority or regulatory body who investigates criminal activity; or
(f) the acquisition or sale of the Work which is, or has been paid for, by the proceeds of a crime.
VAT: value added tax as provided for in the Value Added Tax Act 1994 in the United Kingdom and any other tax of a similar nature.
Work: means the work(s) of art relating to the supply of the Services.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms of business.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 Other than the Introduction, these terms of business shall be binding on, and for the benefit of, the parties to this agreement and their respective personal representatives, successors, and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to writing or written includes email.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 You appoint us as your exclusive agent to perform the Services.
2.2 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.
2.3 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.
2.4 Your continuing instructions will constitute your agreement to these terms of business and our ongoing Engagement.
2.5 Our Engagement shall commence on the earlier of, the date you sign this Agreement or the date you instruct us to perform the Services and shall continue until either party serves 90 days written notice of termination or if terminated in accordance with clauses, 3.1.4, 3.2.5 or 12 (Termination).
2.6 If either party services a notice of termination, other than for cause under clause 12, any current instruction regarding a sale or purchase shall continue until completed on the terms of this Agreement and all applicable Commissions and Expenses shall be payable, unless agreed otherwise in writing. Following termination, clause 3.1.5 shall apply.
3.1 ADVICE TO BUYERS
3.1.1 Whenever you instruct us to advise you on the acquisition of a Work we shall provide some or all of the following services to you:
(a) source the Work privately or at auction;
(b) prepare and produce a bespoke Report summarising the quality, condition, Provenance and value of the Work;
(c) conduct due diligence and market analysis into the Work;
(d) negotiate with the owner and/or his agent if purchasing privately or be authorised to bid on your behalf if purchasing at auction;
(d) oversee (but not carry out) all pre-sale and post-sale logistics until the Work is purchased and delivered safely to you;
(e) provide macro-collection strategy and curatorial advice;
(f) help with decoration projects; and
(g) prepare an Introduction to Collecting program if you are a first time buyer,
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.
3.1.2 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.
3.1.3 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).
3.1.4 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.
3.1.5 If you shall, within 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.
3.1.6 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.
3.1.7 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.
3.1.8 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.
3.2 ADVICE TO SELLERS
3.2.1 Whenever you instruct us to advise you on the sale of a 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 (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.
3.2.2 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.
3.2.3 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.
3.2.4 You irrevocably authorise us to collect payment (or any instalment thereof) for the sale of the Work on your behalf.
3.2.5 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.
3.2.6 If you, within 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.
3.2.7 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.
3.2.8 We may at our absolute discretion revise any marketing or promotional material from time to time.
3.2.9 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.
3.2.10 We are authorised to offer the Work to such prospective buyers and/or their agents as we may decide, subject to notified Parameters.
3.2.11 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 11 (Refusal to Sell or Buy); and
(b) the Work being in our control.
3.2.12 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.
3.2.13 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.
3.2.14 If the buyer elects to cancel the sale pursuant to clause 3.2.13, we shall return the Sale Price to the buyer within 14 days of receiving the Work back from buyer in exactly the same condition as it left us, or if the Work has not left our custody, within 14 days of the buyer notifying us of its election to cancel the sale.
3.2.15 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.
3.2.16 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.
3.2.17 Subject to clause 10 (Indemnity) 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.
3.2.18 Unless otherwise agreed in writing, you acknowledge and agree we shall not be required to disclose the identity of the buyer 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.
3.2.19 The Work and title to the Work will only pass to the buyer on receipt by us 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 us, we will release the Work to the buyer.
3.3 MARKET INTELLIGENCE AND INSIGHT
3.3.1 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.
3.4 COLLECTION MANAGEMENT
3.4.1 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.
3.4.2 We shall usually provide our collection management service on a fixed-fee basis.
3.4.3 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.
- BUYER’S REPRESENTATIONS AND WARRANTIES
4.1 Where you instruct us to provide advice in accordance with clause 3.1 (Advice to Buyers), you represent and warrant that from the date of our Engagement to the date of sale:
4.1.1 you shall act at all times in relation to us dutifully and in good faith;
4.1.2 to the best of your knowledge and belief, you have provided us with an accurate description of the Work and all information of which you are aware relating to the Work (including any association of the Work with persons, auction houses, dealers, museums or exhibitions);
4.1.3 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;
4.1.4 you will pay the Sale Price plus Commission and Expenses to us on demand and where possible at least five Business Days in advance of the anticipated date of sale;
4.1.5 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;
4.1.5 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
4.1.6 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.
4.2 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 set out in this clause 4, including but not limited to, the cost of defending or bringing any legal proceedings, and all actions relating to such proceedings.
- SELLER’S REPRESENTATIONS AND WARRANTIES
5.1 Where you instruct us to provide advice in accordance with clause 3.2 (Advice to Sellers), you represent and warrant that from the date of our Engagement to the date of sale:
5.1.1 you have full legal and beneficial title to the Work free from all Encumbrances and Title Claims;
5.1.2 you have the full right and legal authority to enter into these terms of business;
5.1.3 there are no Title Claims threatened or pending in connection with the Work, or any facts or circumstances likely to give rise to any Title Claims and there exists no option or right of first refusal on the Work or any agreement with respect to the Work to which you are a party other than these terms of business;
5.1.4 the Work has not been the subject of an Unlawful Acquisition;
5.1.5 the Work is not a Counterfeit;
5.1.6 the Work is not the subject of an Incorrect Attribution;
5.1.7 you are not aware of any challenges or disputes (past, pending or threatened) relating to the attribution, authenticity, description or title of the Work;
5.1.8 the Description is true, complete and correct;
5.1.9 you have not restored or repaired any part of the Work, nor consented to such restoration or repair and no other party has performed any major restoration or repair;
5.1.10 the Work is not the national patrimony of its place of origin;
5.1.11 the Provenance of the Work is true, complete and correct and includes all information available to you, or information of which you are aware, concerning the attribution, authenticity, description, provenance and title of the Work;
5.1.12 the Work has been legally exported from: (i) its place of origin; and (ii) the place in which you acquired the Work; and (iii) legally imported into the United Kingdom (if applicable);
5.1.13 you have not received any communication from or with any third party regarding the possibility of any Title Claim or Encumbrance over the Work;
5.1.14 you will, in consideration of the Sale Price, irrevocably and without condition or reservation of any kind, sell, transfer and convey to the buyer good, valid and marketable title to the Work;
5.1.15 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;
5.1.16 no import, export or other laws, rules or regulations of any governmental or other authorities have been violated in connection with the Work;
5.1.17 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;
5.1.18 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;
5.1.19 any and all Taxes due on the Work have been paid;
5.1.20 you are acting in accordance with all Sanctions; and
5.1.21 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.
5.2 You agree to comply with all applicable laws relating to Artist Resale Rights when selling a Work and to pay all associated fees to the original artist of the Work (and their successors in title). You warrant and undertake that when agreeing the Sale Price and the Parameters you will take into account the cost of any such fees. You agree that under no circumstances shall we be liable to pay any fees relating to Artist Resale Right’s in a Work on your behalf and you shall indemnify and keep us indemnified from and against any claim relating to Artist Resale Rights made or demanded against us on any account whatsoever in respect of the Work.
5.3 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 set out in this clause 5, including but not limited to, the cost of defending or bringing any legal proceedings, and all actions relating to such proceedings.
- COMMISSION AND PAYMENTS
6.1 You shall pay to us the Commission applicable for the Services performed in accordance with this clause 6 or, if to be paid separately, within 14 days of the date of our invoice. Please note minimum fees are payable in respect of our Services.
6.2 Where we are acting in accordance with clause 3.1 (Advice to Buyers):
6.2.1 we are irrevocably authorised to pay the Sale Price on your behalf to the seller;
6.2.2 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(s) bought or sold through us for you from the monies received from you;
6.2.3 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(s) 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.
6.3 Where we are acting in accordance with clause 3.2 (Advice to Sellers):
6.3.1 we shall hold the Sale Price on trust for you (subject to the provisions of this clause 6);
6.3.2 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(s) bought or sold through us for you;
6.3.3 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;
6.3.4 if before the Sale Price less those deductions set out in clause 6.3.2 (“Sale Proceeds“) 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;
6.4 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.
6.5 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.
6.6 All sums payable under these terms of business are exclusive of VAT which, where applicable, will be payable at the appropriate rate.
6.7 In the absence of a contrary agreement, the Commission shall be paid to us in the same currency as the Sale Price.
6.8 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.
6.9 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.
6.10 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.
7.1 Where we are acting in accordance with clause 3.2 (Advice to Sellers) the Work shall either remain at premises specified by you and at your own risk unless you agree to deliver the Work to us.
7.2 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.
7.3 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.
8.1 In providing the Services, we may be required to prepare a Report(s).
8.2. 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.
8.3 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.
8.5 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.
8.5 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.
8.6 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.
8.8 You accept that:
8.8.1 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;
8.8.2 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;
8.8.3 you shall not disclose the contents or existence of the Report to any other person without our prior written consent;
8.8.4 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.
9.1 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. All claims, whether for full or partial damage, will be based on the Sale Price. The Insurance Policy must:
9.1.1 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;
9.1.2 comprehensively cover the Work until they are delivered to you or the buyer (as applicable); and
9.1.3 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.
9.2. If requested, you shall promptly provide us with a copy of the insurance policy and certificate of insurance.
9.3 If you fail to provide us with a copy of the insurance policy or if the terms of the insurance policy do not comply with the requirements of this clause 9, we reserve the right to withhold the Work and/or arrange insurance cover for the Work which meet the requirements of this clause and reclaim the cost of and associated with obtained the insurance from you.
- INDEMNITY & LIMITATION OF LIABILITY
10.1 You agree to indemnify us and keep us indemnified on demand against all claims, proceedings, liabilities, costs, Expenses and Losses including without limitation all legal and professional costs incurred by us, our officers, employees or agents arising from:
10.1.1 our acting pursuant to these terms of business, any contract for sale of the Work and any other document we are required to enter into on your behalf;
10.1.2 any actual or alleged breach of any warranty, undertaking or obligation by you to us, whether by act or omission or otherwise;
10.1.3 any injury, loss or damaged caused to any person by you;
10.1.4 our exercising any of our rights, powers and/or duties under clause 11 (Refusal to Sell or Buy);
10.1.5 our receiving or recovering or seeking to recover the Sale Price; and
10.1.6 your fraud.
10.2 Nothing in these terms of business shall limit or exclude either parties liability for any matter in respect of which it would be unlawful for us to exclude or restrict liability, including but not limited to, liability for death or personal Injury caused by negligence and fraud or fraudulent misrepresentation.
10.3 Subject to clause 10.2:
10.3.1 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 woodwom;
(g) changes in atmospheric pressure;
(e) 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;
(f) any expenditure, investment or commitment made in connection with our Engagement; or
(g) any Loss that is an indirect or secondary consequence of any act or omission by us.
10.4 Our total liability for direct damage to a Work caused by the negligence of our employees in connection with these terms shall be limited to the lower of £1,000,000 or the Commission.
10.5 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.
- REFUSAL TO SELL OR BUY
11.1 We may refuse to sell or buy a Work if we have reasonable cause to believe that:
11.1.1 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 or buy the Work (as applicable); or
11.1.2 you are in breach of any of the warranties and undertakings set out in these terms of business; or
11.1.3 the information about the Work give to us by you is inaccurate or misleading in any material respect; or
11.1.4 the Work is a Counterfeit, has an Incorrect Attribution or has been Unlawfully Acquired.
11.2 We will give you notice of any decision under clause 11.1 as soon as reasonably practicable.
11.3 In addition to our rights under clause 11.1, we may, by written notice to you, refuse to sell or buy a 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.
12.1 This agreement shall become effective from the date we commence our Services and it shall continue until:
12.1.1 the sale of the Work and the completion of our post-sale Services;
12.1.2 one party gives the other party written notice to terminate in accordance with clause 12.3; or
12.1.3 terminated earlier in accordance with clause 12.2.
12.2 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:
12.2.1 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 Business Days after being notified in writing to do so;
12.2.2 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;
12.2.3 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;
12.2.4 you are incapacitated (including by reason of illness or accident) and we are unable to receive your instructions for a period of ten Business Days;
12.2.5 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;
12.2.6 you commit any offence under the Bribery Act 2010 or an actual or suspected offence of any Anti-Money Laundering Legislation; and
12.2.7 any equivalent offence, event or action as detailed in clauses 12.2.1 to 12.2.6 in any other applicable jurisdiction.
12.3 For the purposes of clause 12.1, the notice period shall be not less than 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.
12.4 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 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.
13.1 You undertake that you shall not at any time disclose to any person any confidential information concerning our Services, these terms of business and/or the Work, except as permitted by these terms of business.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its 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. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 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.
13.4 You shall make any announcements regarding the sale or purchase of the Work unless we have expressly agreed in advance in writing or knowledge of the purchase is in the public domain.
- DATA PROTECTION
14.1 Both parties agree to comply with all relevant provisions of the Data Protection Law at all times during our Engagement.
14.3 In the event either party processes personal data during this Engagement, we and you will be acting separate data controllers (as defined in the Data Protection Law) and agree to comply with all obligations of a data controller detailed in the Data Protection Law.
15.1 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.
15.2 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 individuals 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.
15.3 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.
15.4 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.
15.5 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.
16.1 Nothing in these terms of business shall be deemed to create a partnership or joint venture between us.
16.2 You may not assign either the rights or obligations of these terms of business without our prior written consent.
16.3 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.
16.4 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.
16.5 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 Directors, email@example.com firstname.lastname@example.org email@example.com), to 21 Bruton Street, London W1J 6QD.
16.6 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, supersedes all previous agreements, correspondence, emails and verbal understandings between us with respect thereto and may only be modified by a document in writing signed by or on behalf of us both. 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.
16.7 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. Any modification to or deletion of a provision or part-provision under this clause 14.7 shall not affect the validity or enforceability of the rest of the terms of business.
16.8 No one other than a party to these terms of business shall have any right to enforce any of its terms.
16.9 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.10 You irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.