Conditions of Sale
BRUTALART CONDITIONS OF SALE
Last Updated: September 28th, 2020
These Conditions of Sale (“Conditions”) describe the relationship between Brutalart OÜ (“Brutalart” or “we” or “our” or “us”) and the buyers, prospective buyers, bidders, sellers and prospective sellers that use the Brutalart website, products, and services (collectively, the “Services”). By using the Services to buy, bid on, inquire about, list, market, offer for sale, or sell any property, you (“you” or “your”) agree to be bound by these Conditions. Please read these Conditions carefully, and feel free to contact us if you have any questions.
- BASIC CONDITIONS
2. ADDITIONAL PROPERTY TERMS
Sellers that use the Services are separate businesses from Brutalart and may have their own additional terms and conditions that apply to the property they offer for sale. Such terms and conditions may be posted in such property’s listing on the Services or otherwise made available on the Services in connection with such property, and you are responsible for reviewing all relevant information available on the Services before buying or bidding on any property. If these Conditions conflict with any seller’s terms and conditions posted on the Services, the seller’s applicable terms and conditions will apply to the extent of the conflict. However, in no event will any seller’s terms and conditions constitute any representation, warranty, or assumption of liability of any kind by us.
The Services may include features that enable you to contact us or the seller regarding property listed on the Services (“Inquiry”). We and the seller will have no obligation to accept or respond to any Inquiry and no liability for any delay or failure to do so.
4. ONLINE PURCHASES
You may be able to place orders to purchase some property on the Services using the online purchase feature (“Online Purchase”). Where available, the Online Purchase feature will be indicated on the Services with a “Purchase” or “Buy Now” button. Online Purchase orders are binding on the buyer. When you place an order using the Online Purchase feature, you are required to complete the transaction subject to these Conditions. For some property, the Online Purchase feature may be available in addition to competitive auction bidding, in which case the Online Purchase feature will be available until the current bid for such property meets or exceeds the starting bid, or, if such property has a Reserve (see section 8 below), until the current bid for such property meets or exceeds the Reserve. If such property is ordered using the Online Purchase feature, it will be withdrawn from the auction pending completion of the Online Purchase sale.
5. BRUTALART SALES
On rare occasions, Brutalart itself may sell property through the Services. If we are the seller of an item, we will expressly identify Brutalart as the seller on the Services and when performing a transaction with the buyer, and with respect to that item, we will be considered the seller under these Conditions. In all other cases, whether an auction, Online Purchase or otherwise, we are not the seller and will have none of the seller’s obligations or liability, whether under these Conditions or otherwise.
We and the seller each reserve the right to withdraw any property from the Services at any time, and will have no liability whatsoever for any such withdrawal. With respect to property available for bidding or listed with the Online Purchase feature, this withdrawal right applies before, during and after any auction or Online Purchase sale.
7. BUY NOW
Features. You may be able to place orders to purchase some property on the Services using the online purchase feature (“Buy Now”) . Where available, the Buy Now feature will be indicated on the Services with a “Buy Now” button. Buy Now orders are binding on the buyer. When you place an order using the Buy Now feature, you are required to complete the transaction subject to these Conditions. If such an item is ordered using the Buy Now feature, it will be withdrawn from the available inventory the seller has pending completion of the Buy Now sale.
Registration and Requirements. In order to participate in Buy Now, you will need to provide any required contact and payment information, and complete any required forms. We may require you to provide documentation of your identity, bank or other financial references, and other qualifying information. We may also require that you deposit a portion of any purchase price or offer that you place, in which case, if the sale is not finalized, your deposit will be refunded to you. In any case, we may refuse registration or access to any person at any time at our sole discretion, including, without limitation, if we believe such action is necessary to comply with the law or to maintain the integrity or reputation of the Services. You represent and warrant that all information you provide is true and accurate, and that you will not permit any other person or entity to use your Brutalart credentials.
Buyer’s Responsibility. Each buyer that places an order using “Buy Now” is required to complete the transaction if they hit the “Buy Now” button.. When you purchase property, you are accepting personal liability for the Total Purchase Price (defined below). You also represent and warrant that any purchases made or offers placed by you or on your behalf are not the result of any collusive or other anti-competitive agreement and are otherwise consistent with federal and state antitrust law.
Our Discretion. We reserve the right, at our absolute discretion, to: (i) reject or revoke your registration or permission to “Buy Now” at any time; and, (ii) reject, revoke or refuse to accept any such order or offer at any time (even orders or offers that may have been previously confirmed, whether on the Services, by email, text message or otherwise).
Inquiries. The seller will have no obligation to accept any Make Offer, and we and the seller will have no liability for any delay or failure to do so.
All Sales are Final. Please note that all sales are final once submitted and may not be cancelled or modified by you.
Total Purchase Price and Payment Deadline. Subject to these Conditions, upon the confirmation of any Online Purchase the sale contract between the buyer and the seller is concluded. The “Total Purchase Price” includes: (i) the purchase price of the item; (ii) any sales tax, use tax, and/or any other taxes or levies that the seller or we are required to collect from the buyer under applicable law; (iii) any and all shipping and packing costs; and (iv) any and all other applicable charges.
Payment Processing. We accept payment from the buyer on behalf of the seller in connection with sales made using the “Buy Now” functions. We use a third-party payment processor, Stripe, that accepts American Express, Visa, MasterCard, Discover, and Diners Club. We may place limits on any credit card purchase to process any transaction at our sole discretion. You authorize us to send instructions to the financial institution that issued your credit card to take payments from your credit card account in accordance with the terms of our agreement with you. If any credit card payment is not approved, the buyer will remain personally liable for all amounts otherwise due. The buyer agrees to notify us directly in writing of any claims or issues regarding any payment made for these sales. Currently, all payments in connection with these sales must be made in the currency specified by us unless we expressly agree otherwise in writing. The buyer consents to us retaining commissions out of amounts received from the buyer to the seller for these sales.
Taxes. The buyer is required to pay any and all sales taxes, VAT, export and/or import taxes and duties, and any other transactional taxes or levies related to the purchase of property by the buyer. The buyer is required to pay any taxes the seller is, or we are, as applicable, required to collect, but the failure of the seller or us, as applicable, to collect any taxes from the buyer will not relieve the buyer’s obligation to pay them. Unless expressly otherwise indicated, all prices listed on the Services are exclusive of taxes, and applicable taxes will be collected from the buyer in addition to the listed price.
8. AFTER SALE
Total Purchase Price and Payment Deadline. Subject to these Conditions, upon the confirmation of any Online Purchase, the sale contract between the buyer and the seller is concluded, and the buyer must pay the Total Purchase Price no later than 5:00 PM CEST on the seventh (7th) day after the sale (“Payment Deadline”). The “Total Purchase Price” includes: (i) the purchase price of the item; (ii) any sales tax, use tax, VAT and/or any other taxes or levies that the seller or we are required to collect from the buyer under applicable law; and (iii) (for items sold in an auction) any applicable buyer’s premium.
Passage of Title and Risk of Loss. We do not transfer and are not responsible for transferring legal ownership of property from the seller to the buyer. The seller represents that: (i) the seller is the sole owner of each item the seller offers for sale through the Services, or else the seller is duly authorized by the owner of such item to sell it; and (ii) subject to these Conditions, the seller is able to transfer good and marketable title to such item to the buyer free from any claims of third parties. Risk of loss to each item will pass to the buyer when legal title to such item passes to the buyer.
Payment Processing. We may accept payment from the buyer on behalf of the seller in connection with some sales, in which case we will notify the buyer that we are doing so by email and/or by providing the buyer with an option to check out on the Services. We may accept payments from buyers by credit card, check or wire transfer at our sole discretion, and have no obligation to accept payment by other means. We accept Visa, MasterCard. We may place limits on any credit card purchase and/or use third-party payment processors to process any transaction at our sole discretion. If any credit card payment is not approved, the buyer will remain personally liable for all amounts otherwise due. The buyer agrees to notify us directly in writing of any claims or issues regarding any payment made to us by credit card or any other means. All payments to us must be made in euro unless we expressly agree otherwise in writing. The buyer is responsible for any currency costs incurred to make all payments to us regardless of the buyer’s home currency or payment method. If we or the seller incur any bank fees receiving any payment from the buyer by wire transfer, the buyer will be responsible for those costs and agrees that (as applicable) we or the seller may charge those costs to the buyer. The buyer consents to us paying commissions out of amounts received from the buyer to third parties referring us clients or otherwise assisting us in connection with the sale of property.
Taxes. Unless exempt by law, the buyer is required to pay all sales and use taxes (including VAT), export and/or import taxes and duties, and any other transactional taxes or levies (“Transactional Fees”) related to the purchase of property by the buyer. The buyer is required to pay the seller any taxes as the seller is required to collect, but the failure of the seller to collect any taxes from the buyer will not relieve the buyer’s obligation to pay them. Buyers claiming exemption from any tax are responsible for providing proper documentation. Any delay in obtaining or failure to obtain any relevant documentation or a refund of any tax will not justify the cancellation of any sale or any delay in paying the Total Purchase Price by the Payment Deadline. Unless expressly otherwise indicated, all prices listed on the Services are exclusive of Transactional Fees and any other fees not defined in this Agreement may be collected from the buyer in addition to any listed price.
Shipping and Handling. The buyer is required to pay all shipping, packing, and transit insurance fees and costs for purchased property. We may, but are not obligated to, provide support in the shipping process, such as facilitating communication or payment between buyers and shippers, or recommending third-party service providers. However, any such support or recommendations are for convenience only and do not constitute or imply any representation, warranty, or assumption of liability of any kind by us. We are not the agent of any buyer, seller or third party in connection with the shipping, packing or handling of any property. We do not control and are not liable or responsible for the acts, omissions or policies of the seller or any third party in connection with the shipping, packing or handling of any property, whether or not recommended by us. Unless we specifically agree otherwise in writing with respect to certain property, we have no responsibility for the delivery of any purchased property.
Resale. The buyer must not re-offer any purchased property for sale until the buyer has paid for the property in full and has otherwise assumed legal ownership and physical possession of the property subject to these Conditions.
Remedies for Non-Payment. If the buyer for any reason cancels any payment made by credit card or otherwise fails to pay the Total Purchase Price with respect to any property by the Payment Deadline, the buyer will be in default (“Buyer Default”) and will be liable for payment of such Total Purchase Price and any other applicable charges. In the event of Buyer Default in connection with any property, without limiting any other rights or remedies available to us or the seller (whether at law, in equity, or under these Conditions), the seller may cancel the sale of such property to the defaulting buyer and resell such property publicly or privately on terms the seller thinks fit, and the defaulting buyer will be liable for payment of any deficiency between the resale price obtained by the seller and the purchase price originally owed by the defaulting buyer. In any case, the defaulting buyer will be liable to us and the seller for any and all costs, expenses (including reasonable attorneys’ fees), and damages of whatever kind incurred in connection with such Buyer Default, the collection of any amounts due from the defaulting buyer, and/or (if applicable) the resale of the property at issue. In addition, if the buyer for any reason fails to pay the Total Purchase Price with respect to any property by the Payment Deadline, the buyer irrevocably authorizes us, at our option, to charge the buyer for any outstanding portion of such Total Purchase Price using any credit card information the buyer has provided on the Services, whether or not the buyer provided such credit card information in connection with the sale at issue.
9. EXPORT AND IMPORT LICENSES AND OTHER RESTRICTIONS
Prospective buyers are advised that: (i) some countries may prohibit or require a license or permit in order to export or import some property, including but not limited to property containing material from endangered or other protected plant or animal species; (ii) cross-border deliveries are subject to opening and inspection by customs authorities; (iii) the laws of some countries may prohibit the resale of some property once it is imported into those countries; and (iv) some countries may reserve the right to purchase some property exported from those countries (sometimes called a “right of preemption”). None of Brutalart and our officers, owners, directors, consultants, agents, and employees (collectively, the “Brutalart Parties”) or the seller makes any representations or warranties as to whether any property is or is not subject to any such laws or restrictions. It is solely the buyer’s responsibility to determine and obtain at its own cost any necessary export and/or import licenses and other required permits for purchased property. Unless the buyer and the seller agree otherwise, a delay in obtaining or failure to obtain any required license or permit will not justify the cancellation of any sale or any delay in paying the Total Purchase Price with respect to any property. None of the Brutalart Parties or the seller will be liable for any damage or loss resulting directly or indirectly from any confiscation of purchased property, transportation restriction, or other action taken by any government or public authority.
10. AVAILABILITY AND PRICING
We cannot guarantee that any property appearing on the Services will be available to sell or listed with the correct price, including but not limited to items listed with the Online Purchase feature. We reserve the right to cancel any Online Purchase order at any time if we are notified by the seller or otherwise determine at our sole discretion that the item ordered is not available to sell for any reason or was listed with an incorrect price, even after the buyer receives an order confirmation (whether on the Services, by email or otherwise). If your Online Purchase order is cancelled under such circumstances, we will notify you by email of such cancellation and you will be refunded for any amounts that you have already paid for the applicable item and its delivery to you (if any), and the Brutalart Parties and the seller will otherwise have no liability whatsoever for any such cancellations or listing errors. You acknowledge and agree that all property appearing on the Services is subject to availability.
The Buyer will not be charged for the payment before his/her purchase offer has been validated, which is done within 48 hours by BRUTALART, in order to ensure the Artwork’s availability from the Seller. If the Artwork is no longer available, an email informing the Buyer will be sent within 48 hours, cancelling the order.
11. “AS IS”
ALL PROPERTY SOLD VIA ONLINE PURCHASE IS SOLD “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, AND NONE OF THE BRUTALART PARTIES OR THE SELLER MAKES ANY REPRESENTATIONS OR WARRANTIES, OR ASSUMES ANY LIABILITY OF ANY KIND, WITH REGARD TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, SIZE, QUALITY, CONDITION, ATTRIBUTION, AUTHENTICITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITION HISTORY, LITERATURE OR HISTORICAL RELEVANCE OF ANY SUCH PROPERTY, AND NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE ON THE SERVICES, IN A BILL OF SALE, AN ADVERTISEMENT, ANY OTHER SUPPLEMENTAL MATERIALS OR ELSEWHERE, WILL BE DEEMED SUCH A REPRESENTATION, WARRANTY, OR ASSUMPTION OF LIABILITY. THE BRUTALART PARTIES AND THE SELLER MAKE NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE BUYER WILL ACQUIRE ANY REPRODUCTION RIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN ANY PROPERTY SOLD, OR WHETHER ANY ARTWORK SOLD IS SUBJECT TO ANY ARTIST’S MORAL RIGHTS OR RESIDUAL RIGHTS. WITH RESPECT TO PROPERTY AVAILABLE FOR BIDDING, ANY ESTIMATE OF THE SELLING PRICE IS NOT TO BE RELIED ON AS A STATEMENT THAT THIS IS THE PRICE AT WHICH THE ITEM WILL SELL OR ITS VALUE FOR ANY OTHER PURPOSE. THE BRUTALART PARTIES AND, THE SELLER, WILL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS ON THE SERVICES OR IN ANY SUPPLEMENTAL MATERIALS. ALL PROPERTY SOLD VIA ONLINE ONLINE PURCHASE IS FINAL SALE AND IS NOT RETURNABLE.
12. DISPUTE RESOLUTION
As we are not the agent of any buyer, prospective buyer, bidder or seller for any purpose, the BrutalArt Parties have no duty to resolve, and will not act as the agent of any buyer, prospective buyer, bidder or seller in connection with resolving any disputes. However, we reserve the right, but are not obligated, to investigate complaints or claims of buyers, prospective buyers, bidders or sellers, and you agree to cooperate with us in any such investigations that we may choose to conduct, as permitted by applicable law.
13. GENERAL RELEASE
THE BRUTALART PARTIES DO NOT ENDORSE OR CONTROL AND ARE NOT RESPONSIBLE FOR THE CONDUCT, PERFORMANCE OR NON-PERFORMANCE (WHETHER ONLINE OR OFFLINE) OF ANY BUYERS, PROSPECTIVE BUYERS OR SELLERS IN ANY WAY CONNECTED WITH THE SERVICES OR ANY PROPERTY LISTED, MARKETED, OFFERED OR SOLD THROUGH THE SERVICES. IF YOU HAVE A DISPUTE WITH ONE OR MORE BUYERS, PROSPECTIVE BUYERS OR SELLERS IN ANY WAY CONNECTED WITH THE SERVICES OR ANY PROPERTY LISTED, MARKETED, OFFERED OR SOLD THROUGH THE SERVICES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE THE BRUTALART PARTIES FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. YOU EXPRESSLY WAIVE ANY BENEFITS OR PROTECTIONS, WHETHER STATUTORY OR OTHERWISE, THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF ENTERING INTO THIS RELEASE.
14. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ANY WARRANTIES THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR FREE OF ERRORS, AND ANY WARRANTIES THAT ANY BUYERS, PROSPECTIVE BUYERS OR SELLERS WILL COMPLETE ANY TRANSACTIONS OR OTHERWISE PERFORM AS PROMISED, ALL OF WHICH THE BRUTALART PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ANY OF THE BRUTALART PARTIES BE LIABLE OR RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN CONNECTION WITH THE EXECUTION OF ANY BIDS (WHETHER ONLINE, OFFLINE, ON THE SERVICES, IN AN EMAIL, OR OTHERWISE), OR FOR ANY INABILITY OR FAILURE TO ACCESS THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY FAILURES RESULTING DIRECTLY OR INDIRECTLY FROM ANY LOSS OF INTERNET OR TELEPHONE CONNECTION OR FROM ANY BREAKDOWNS OR MALFUNCTIONS OF THE SERVICES OR ANY COMPUTER, DEVICE OR SYSTEM DIRECTLY OR INDIRECTLY AFFECTING THE AVAILABILITY OR OPERATION OF THE SERVICES.
15. LIMITATION OF LIABILITY
IN NO EVENT WILL ANY OF THE BRUTALART PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE, ANTICIPATED SAVINGS, BUSINESS, GOODWILL OR OTHER INTANGIBLE LOSSES, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (i) THESE CONDITIONS; (ii) THE SERVICES; (iii) THE USE OF OR INABILITY TO USE THE SERVICES; OR (iv) ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. In no event will any of the Brultart Parties have any liability whatsoever with respect to the listing, marketing, offer or sale of any property through the Services, except that our liability to the seller may vary as otherwise stated in a separate written agreement between us and the seller, and with respect to property sold by Brultart itself. The exclusions and limitations of liability provided in this section apply to all claims, whether based on warranty, contract, statute, tort (including negligence), strict liability, or any other legal theory, whether or not any of the Brultart Parties have been advised of or should have known of the possibility of such damage or loss, and even if a remedy set forth in these Conditions is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the exclusions and limitations provided in this section may not apply to you, in which case the liability of the Brutalart Parties will be limited to the fullest extent permitted by applicable law
16. EU CANCELLATION RIGHTS
Pursuant to the European Union (“EU”) Directive on Consumer Rights (2011/83/EC), a buyer in the EU (an “EU Buyer”) who purchases a lot in a timed/online-only auction or via Buy now has a right to cancel such sale contract within fourteen (14) days after they or a person they authorize (other than the carrier) take physical possession of such lot, for any reason and without incurring liability for doing so. An EU Buyer that exercises this cancellation right must return the lot, and the seller will refund the EU Buyer for payments already made for the purchase and applicable shipping of the lot. To exercise this cancellation right, the EU Buyer must inform the seller through a clear statement (i.e., a letter sent by post or e-mail).
17. CHOICE OF LAW AND VENUE
These general terms and conditions of sale are governed by Estonian law.
18. CHANGES TO THESE CONDITIONS
We reserve the right to change, modify, add or remove any part of these Conditions at any time at our sole discretion. All changes to these Conditions will be effective immediately when posted on the Services, and you agree to review these Conditions carefully and inform yourself of all applicable changes before buying or bidding on any property. Changes to these Conditions will not apply to any transaction, claim or dispute that arose before the changes became effective, all of which will remain subject to the version of these Conditions in effect at the time that such transaction, claim or dispute arose. Please save and/or print a copy of these Conditions for your records.
These Conditions, together with any other applicable terms and conditions made available on the Services, and (as applicable) any written terms and conditions made available by us or the seller at a live event where the Services are used for bidding, constitutes all of the terms and conditions on which you may purchase, bid on, or inquire about property through the Services. If any provision of these Conditions is found by a court of competent jurisdiction to be invalid or unenforceable for any reason, that provision will be enforced to the maximum extent permissible, and these Conditions will otherwise remain in full force and effect. No delay or failure by us to exercise or enforce any right or provision of these Conditions will be deemed a waiver of that or any other right or provision. We will not be deemed to have waived any right or remedy under these Conditions unless the waiver is in writing and signed by an Brultart representative who intends and is duly authorized to agree to such waiver on our behalf. No single or partial exercise by us of any right or remedy under these Conditions will prevent any further exercise by us of any other right or remedy. These Conditions will insure to the benefit of, and are intended to be enforceable by, the parties and their respective successors and assigns, but you may not assign these Conditions or any right or obligation under these Conditions without our prior written consent. There are no third-party beneficiaries to these Conditions except as expressly stated in these Conditions. You and we are independent contractors under these Conditions. Nothing stated in or implied from these Conditions will create any agency, partnership, joint venture, employment, sales representative, or franchise relationship between you and us. These Conditions were written in English (U.S.). To the extent any translated version of these Conditions conflicts with the English version, the English version controls. The paragraph and section titles in these Conditions are for convenience only and have no legal or contractual effect.
20. CONTACTING BRUTALART
If you have any questions about these Conditions, please email us at: email@example.com.