These Terms are effective upon acceptance for new Users, and from May 1, 2024 for existing Users. To view the previous version of these Terms see: Terms Archive Page.
ARTSY GENERAL TERMS AND CONDITIONS OF SALE
Last Updated: April 17, 2024
Effective: May 1, 2024
Welcome to Artsy. These General Terms and Conditions of Sale ("Terms"), along with applicable Service Terms ("Service Terms"), and Policies posted on our Services forms the agreement ("Agreement") between Art.sy, Inc. d/b/a Artsy and/or its affiliates ("Artsy" or "we" or "our" or "us") and you ("you" or "your" or "User") governing your access to and use of our sites, mobile applications, platforms, tools, products, and services ("Services"). You agree to comply with all terms of the Agreement when accessing or using our Services.
If you are using the Services as a Buyer or a Seller, these Terms, particularly beginning with section 5 onwards, also govern your relationship with other Buyers and/or Sellers and sets forth the terms and conditions in which you list, market, sell and purchase Items. If you are using our Services on behalf of or as an agent for any third party, you represent and warrant that you are authorized to bind that third party to the Agreement, in which case the terms "you" and "your" and "User" may also refer to the third party. You agree to applicable Service Terms when you opt to use certain Services and any additional policies, guides and FAQs that are made available to you in the Services, including those available here ("Policies") and our Privacy Policy. Capitalized terms have the meanings given to them in this Agreement. If there is any conflict between these General Terms and any Service Terms, the Service Terms will prevail as it relates to the use of the applicable Service, and both prevail over the Policies.
Please read these Terms carefully. They cover important information about the Services offered to you, the terms and conditions of sale for your transactions and the charges, taxes, and fees you may owe. These Terms include information about future changes to these Terms, limitations of liability, and a class action waiver and resolution of disputes by arbitration instead of in court, among others. By accessing or using our Services in any way, you agree to these Terms; if you do not agree to all of the following, you are not permitted to use the Services.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
As used in this Agreement:
- "Service(s)" means our sites, mobile applications, social media surfaces, marketplace, tools, products, and services.
- "on the Services" means on, through or in connection with any of Artsy's website(s) and/or mobile applications and Service offered, whether offline or online, indirectly or directly, including any written communications.
- "User" means any person or entity who Uses the Services in any way, including you.
- "Buyer" means any User who uses the Services to bid on, make offers on, inquire or communicate about or purchase Items.
- "Seller" means any User who uses the Services to list, offer, market, sell or communicate with Buyers about Items.
- "Item" means any artwork, good or property listed, offered, marketed or otherwise made available through the Services.
1. Role of Artsy. Artsy is a marketplace that offers tools and features for Users to list, sell, market, browse, and buy Items in a variety of pricing formats. Any guidance we provide as part of our Services, such as pricing, shipping, listing and sourcing is solely informational and you may decide to follow it or not. Sellers and Buyers who use our Services are independent parties who act on their own behalf and are solely responsible for any transactions they may enter into through the Services. We are not the agent or fiduciary of these parties for any reason (including in connection with the sale, purchase, shipping, packing, storage, handling or dispute of any Item) and are not a party to any sale transaction that may occur between Sellers and Buyers. We may help facilitate communication, payment, shipping, or other services between Buyers and Sellers, which are offered for convenience. Any descriptions, condition reports, information, pre-sale estimates, or other statements made by us about any Item, is not a representation of fact, but rather a statement of belief held by Artsy based solely upon information provided to us by the Seller. In no event will any third-party terms, statements or information (including those made by the Seller) constitute any representation or warranty or assumption of liability of any kind by us. On occasion, Artsy itself may sell Items through the Services ("Artsy Sale"), in which case we will expressly identify ourselves as the Seller on the Services. In all other cases we do not manufacture, own, sell, inspect or take possession of the Items available on the Services. We reserve the right to determine and control any and all aspects of the Services, in whole or in part including the right to: (i) re-design, revise, refuse, add, or remove any aspect of the Services (including the appearance, design, and functionality of the Services or any Content, as defined below); and (ii) limit, modify, terminate, suspend or refuse the use of any or all of our Services to anyone at any time.
2. Using Artsy’s Services. We offer a wide range of Services, some of which have additional eligibility requirements. We will notify you of those requirements in the Agreement or otherwise in connection with those Services. To use our Services, you agree that you:
2.1. meet all applicable eligibility requirements;
2.2. have all necessary rights and authority to enter into a legally binding contract, are above 18 years old and can perform your obligations under this Agreement; if you are a business, that you are duly organized, validly existing, and in good standing under the laws of the country in which your business is registered;
2.3. will comply with all laws, rules and regulations (“Laws”), Service Terms, Policies, intended and authorized use of the Services, and third-party rights including data privacy any intellectual property rights;
2.4. are not located in a country embargoed by the United States and are not on any sanctions, prohibited or restricted party lists; and will not transact with any party in the Services with whom transactions are prohibited under economic or trade sanctions Laws;
2.5. are solely responsible for maintaining the truthfulness, accuracy and confidentiality of your Artsy account and for all activities that occur through your account. You. are also responsible for maintaining the security of login credentials and agree to notify us immediately if you suspect or become aware of any unauthorized access to or use of your account or login credentials or any other breach of security on our Services; and you cannot transfer, lease, or sublicense your account;
2.6. are responsible for all of your own expenses and for providing any equipment you require in connection with your use of the Services;
2.7. have all necessary rights and authority to offer or otherwise able to sell an Item;
2.8. will pay for Items purchased by you or release for shipping Items sold by you, and will timely cooperate or communicate with us or another party to complete any transaction, shipment or delivery;
2.9. will provide information or supporting documentation to verify your identity, transactions, financial information or tax-exempt status, or as we otherwise deem necessary so that we can complete required Know Your Customer or other diligence;
2.10. will not take any action under the Agreement that conflicts with your obligations to any third party;
2.11. will not manipulate the price of any Item, engage in anti-competitive or abusive behavior, or interfere with any other User’s listing or transaction;
2.12. will not provide, publish or transmit information about yourself or your Item(s) which is untrue, misleading, abusive, obscene, vulgar, pornographic or indecent; and will not circumvent any suspension or termination of your account;
2.13. will not misrepresent your identity or your relationship with any person or entity, including Artsy, an artist or gallery;
2.14. will not attempt to, assist or encourage any other person or entity to violate the Agreement;
2.15. will not access our Services by any means other than the interface and instructions that we provide; access, tamper with, or use non-public areas of our Services, our computer systems, or the technical delivery systems of our service providers; breach, disable or circumvent any security or authentication measures on or in connection with our Services; forge any TCP/IP packet header or any part of the header information in any email or posting; interfere with the normal operation of our Services or the access of any User, including transmitting any viruses, spyware, scraping, crawlers, data mining or harmful code, embed links, advertising, chain letters, spam or pyramid schemes of any kind, use any artificial intelligence systems, machine learning models or tools; flood our Services with excessive requests or traffic; or take any other action that creates (in our sole estimation) an unreasonable or disproportionately large load on our servers or systems;
2.16. will not copy, modify, aggregate, adapt, translate, reverse engineer, decompile, mirror, frame, disable, publicly display, reproduce, create derivative works from, perform, distribute or otherwise use in any way, any portion of the Services or Content, other than as expressly permitted by Artsy or the applicable third party rights holder;
2.17. will not harvest, reverse engineer or otherwise collect or use User information (including email address, name, or location) without their express consent or beyond the scope of their consent;
2.18. will not commercialize any Services, Content, information, data or software without Artsy’s or the applicable third party rights holder’s prior express permission;
2.19. will not remove, conceal, modify or tamper with any copyright, trademark, or other proprietary marking or notice, or any digital watermark or other technical measure used to indicate the source or ownership of any image or other Content;
2.20. will not export or re-export any Artsy application or tool, except in compliance with the export control Laws; will not use funds connected with any criminal activity or in violation of applicable anti-money laundering Laws; and
2.21. will not engage in abusive or inappropriate conduct that undermines Artsy’s Services and marketplace.
We may monitor your activity, communications and User Content in the Services. If we believe you are violating the Agreement or abusing Artsy and/or our Services in any way, we may, in our sole discretion and without limiting other remedies: investigate suspected violations; limit, suspend, or terminate your account and access to our Services; assess fees and recovery of expenses for monitoring and enforcement; suspend, remove, edit and/or not display Item listings or User Content; reduce or eliminate any discounts; cancel pending transactions, bids or offers; and take technical and/or legal steps to prevent you from using our Services. We may offer a process allowing Users to report claimed violations for us to consider and handle through one or more of these options, all in our sole discretion. We may close accounts that have been inactive for a substantial period of time, reclaim or repurpose any username or URL on our Services, to change your password or require you to change your password or otherwise confirm your account. We reserve the right to report and disclose any activity, information or material (including User information, IP addresses and traffic information, usage history, posted material, and transaction information) to appropriate law enforcement officials, regulators, financial institutions, Payment Processors or other third parties in order to cooperate with governmental requests, comply with applicable laws, resolve disputes, ensure the integrity and operation of the Services, or as Artsy otherwise deems necessary without notice to you.
3. Content. Content covering a wide range of art and subject matter may be available through the Services. "Content" may include: (i) information, messages, data, images, illustrations, post, reports, articles, text, files, links, designs, graphics, descriptions, audio, videos, and other materials; (ii) the registered and unregistered trademarks, logos, trade names, trade dress, service marks, trade identities, and other distinctive brand features of various parties (collectively, "Marks"); and (iii) other forms of intellectual property. You may access and view available Content solely for your own personal, non-commercial use in accordance with the normal functionality and restrictions of our Services. Some Services may enable you to post, embed or transmit Content in a way that will be accessible to others on our Services or in other locations online (such as other websites and social media services). The availability of such Services do not imply or give you permission to reproduce, distribute or otherwise use such Content in any other way. Nothing in the Agreement may be construed as granting, by implication or otherwise, any license or right to use any Mark displayed on the Services without the express written permission of Artsy or the applicable third party rights holder. Content is generally uncensored. You acknowledge that you may be exposed to Content that is inaccurate, misleading, or which may include nudity, or other visual or written material that some people may consider offensive, inappropriate or otherwise objectionable. If you allow a minor to access the Services, it is your responsibility to prevent them from accessing Content that you consider inappropriate for them.
3.1. Artsy's Content. We (or our third-party licensors, as applicable) remain the sole owner of all rights, title and interest in and to the Services, the Content (excluding your User Content (as defined below)), the look and feel, design and organization of the Services, and the compilation of Content on the Services, including all intellectual property rights therein, registered and unregistered Marks of Artsy and third parties. All Marks not owned by Artsy that appear on the Services are the property of their respective owners. You acknowledge that you do not acquire any ownership rights by the Agreement or your permitted use of the Services or any Content. You will not use any Artsy Mark or URL in any manner that is likely to cause confusion or incorrectly suggests our affiliation with or endorsement of any person, entity, event, product or service, nor will you use any meta-tags or other hidden text or metadata containing any Artsy Mark or URL without our express prior written permission. We reserve all rights not expressly granted to you in these Terms.
3.2. User Content. You are responsible for Content you submit, post, publish or otherwise provide through the Services ("User Content") and acknowledge that User Content will not be treated as confidential or secret and may be used by us in any manner consistent with the Services. You grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to store, process, reproduce, distribute, publish, adapt, modify and otherwise use your User Content, in any and all media now known or later developed, for any lawful purpose, including without limitation for promotional and/or commercial purposes. This grant includes the right to exploit any and all intellectual property rights in such User Content. You waive all rights you may have to inspect, approve or receive compensation for any use of your User Content by us or our approved licensees and any claim you may have against us or our authorized licensees for any alleged or actual infringements or misappropriation of any intellectual property rights in your User Content. You remain the owner of any intellectual property rights that you may have in your User Content, however, nothing in this Agreement restricts any other rights that we may have or later obtain with respect to your User Content (such as rights under applicable laws or other licenses). Some User Content may be marked to indicate that we may receive compensation for the placement or advertisement and the marking is for general informational use only and is not an endorsement, representation or warranty by us. User Content does not reflect Artsy's views, and you acknowledge that we have no obligation to review or screen User Content.
3.3. Copyright Policy; Reporting Unauthorized Content. We respect the intellectual property rights of others, and require that you do the same. If Content that you own or control the rights to has been published on the Services in a way that constitutes copyright infringement and you want it removed, please follow the steps in our Copyright Policy. If we receive a report of infringement that alleges that your User Content infringes upon another party's intellectual property rights, we will take appropriate action in accordance with the Agreement and the Digital Millennium Copyright Act ("DMCA").
4. Third Party Services. We may, recommend or otherwise make available third-party websites, content, products, software or services (“Third Party Service(s)”) through the Services, including through links, plug-ins and extensions. Some of our Services may require that you use Third Party Services (for example, payment processors or identity verification services). Your use of any Third Party Service and any exchange of data between you and a Third Party Service is solely between you and the applicable third party and is at your sole risk. You are responsible for reviewing and complying with eligibility requirements, registration and Third Party Service provider’s terms and policies before accessing or using the Third Party Service. Certain software used in our Services may be offered under an open source license that we will make available to you. The open source license may contain provisions that override portions of this Agreement as it relates to the use of that software.
5. Item Listings. When listing an Item for sale on the Services, Seller agrees to comply with the Agreement including our Listing Requirements and Restricted Materials Policy. You, when acting as a Seller, agree that:
5.1. you will register for an Artsy account or with any Third Party Service, as required;
5.2. you assume full responsibility for the Item offered and for the accuracy and content of the listing even if we facilitate the publication on the Services;
5.3. we may publish, market and promote your listings, including related information such as sale or performance data (including the sale price achieved), on the Services and through third party channels at our sole discretion;
5.4. unless we expressly agree in writing with respect to specific Items, each of your Items will be listed and marketed in your name;
5.5. we may publicly identify you as an Artsy User on the Services and in marketing materials and you consent to the use of your names and Marks for such purposes;
5.6. we do not guarantee that your listing will appear in any specific search results, order or or location on the Services;
5.7. if requested by Buyer, you agree to use reasonable efforts to provide a condition report or to give access to a representative engaged by the Buyer to prepare a condition report;
5.8. you will not cause undue delay in the completion of any transaction after the transaction has closed. This means you will not: (i) ask Buyers to accept additional Seller Conditions (defined below) or pay additional fees not disclosed on the Services; (ii) fail to timely release an Item after payment has been remitted; (iii) refuse to accept a cancelation or return which is expressly permitted under these Terms; or (iii) refuse to issue any refund or pay any sums you are required to pay under the Agreement; and
5.9. except as expressly provided herein, all sales are final and may not be canceled by you;
Sellers acknowledge and agree that we may market and promote their Item(s) (including, if applicable, the Online Purchase thereof) and may publicly identify Sellers as Artsy sellers, both on the Services and in other marketing materials distributed outside of the Services. Sellers further acknowledge and agree that each Item will be publicly listed, marketed, offered and sold in Seller’s name, unless we agree otherwise. Each Seller consents to the use of Seller’s name and Marks for such purposes.
6. Purchasing Conditions. Buyers are able purchase an Item through different pricing formats, which include bidding in a timed sale (“Auction”) or submitting an offer to purchase an Item using the Services (collectively, “Purchase”). When engaging in a Purchase, you, the Buyer, agree that:
6.1. you will register for an Artsy account or with any Third Party Service, as required;
6.2. you are responsible for reviewing all relevant information available through the Services and any other inspections or investigations or request any supplemental documentation required to satisfy yourself before making a Purchase. Unless a listing specifically states that a certificate of authenticity, professional valuation or other supplemental documentation is available, neither we nor the Seller guarantee that such documentation will be available. You may request that Sellers provide additional condition reports at your own expense;
6.3. all dimensions are approximate, images and illustrations are for identification purposes only. Items may have other faults not expressly referred to in the listing or in a condition report;
6.4. if an Item is framed, Artsy is not responsible for the condition of the frame;
6.5. all bids and offers are binding once submitted and may not be modified or revoked, except with our express written consent under circumstances that we consider appropriate at our sole discretion;
6.6. if your bid is the winning bid or if your offer is accepted by the Seller, you agree to pay the Total Purchase Price. The “Total Purchase Price” is the sum of: (i) the hammer price or agreed upon price (both being the “Item Price”); (ii) any applicable buyer’s premium; (iii) any applicable artist resale royalty; (iv) all shipping, packing, and insurance costs; (v) any applicable Transactional Taxes (as defined below); and (vi) any other applicable charges. Buyers should note that if the Item is shipped internationally, the Buyer may be responsible for additional customs duties, fees and expenses that are not included in the Total Purchase Price or collected by Artsy or the Seller.
6.7. we may require you to provide valid credit card information, bank information, or other accepted payment information in your name (“Payment Method”) or deposit a portion of any bid or offer that you place. If your bid or offer does not result in a finalized transaction your deposit will be refunded to you. If it does, your deposit may be used to offset the appropriate portion of the Total Purchase Price;
6.8. all Purchases are final and may not be canceled by you, unless expressly provided herein;
6.19 you will ensure that the transaction completes in a timely manner. This means you will: (i) pay the Total Purchase Price by the Payment Deadline (as defined below); (ii) provide any information or documentation or complete any procedures required to process the transaction or ship the Item; and (iii) not attempt to cancel a transaction for any reason not expressly permitted herein;
7. Additional Seller Terms. Sellers may have supplemental terms and conditions of sale that apply to the Items they list, which will be posted on or otherwise made available through the Services (“Seller Conditions”). In the event of any conflict, the Seller Conditions will prevail over these Terms to the extent the conflict relates to the Buyer’s relationship with the Seller, and these Terms will govern to the extent the conflict relates to the Buyer’s or Seller’s relationship with Artsy.
8. Receipt and Use of User Information. You may receive or gain access to the names, contact information, address, payment information or other identifying information of other Users (“User Information”) in connection with your use of the Services, (for example, when you send or receive inquiries, bid or win an Item or purchase, sell or ship Items). You agree: (i) to keep User Information strictly confidential; (ii) to only use User Information for the specific purpose in which it was provided; and (iii) not to use User Information to send unsolicited marketing emails or other unsolicited communications, except if a User has given you their express consent to do so. Notwithstanding any terms, Policies or statements to the contrary, once a transaction has been confirmed the Buyer and Seller each authorize us to disclose the their User Information to the other party and shipping providers (as applicable) or as otherwise necessary to facilitate the transaction, and agree to work directly with other parties to complete the transaction. For the avoidance of doubt, Artsy has no obligation to disclose any User Information to any other User for any purpose at any time.
9. Artsy's Buyer Guarantee. Certain Buyer Guarantees may apply to certain Purchases if this is noted on the Services. For the avoidance of doubt, Buyer Guarantees are not offered for communications or transactions completed outside of the Services or for transactions where payment is not remitted through Artsy Pay. The application and resolution of a dispute under the Buyer Guarantees is determined at our sole discretion and is subject to section 21 (User Disputes) below.
10. Offline Purchases. Buyers and Sellers agree that any transaction initiated on the Services may not be taken offline unless completing the transaction is not yet available on the Services. Any transaction completed outside of the Services (an "Offline Purchase") will be completed directly between the Buyer and Seller and Artsy will have no liability or obligation with respect thereto. Notwithstanding the foregoing, if a Buyer ultimately completes their Purchase through the Services, or if we agree to make Artsy Pay available in connection with such Offline Purchase despite having no obligation to do so, the transaction will be considered a Purchase subject to the terms of this Agreement with the exception of the Buyer Guarantee.
11. Auctions. If eligible, Sellers can offer Items in an Auction and Buyers can place competitive bids to purchase the Item.
11.1. Artsy Curated Auctions. Auctions may feature collections of Items offered for sale by different Sellers that are curated by Artsy ("Artsy Curated Auction" or "ACA"). If Artsy determines a Seller is eligible to participate in an ACA, the Seller's participation is subject to the Sell With Artsy Service Terms. Following the close of an ACA, Artsy will notify winning Buyers, collect payment through Artsy Pay and facilitate shipment of Items through Artsy Shipping (each as defined below), unless an alternate procedure is noted on the Service or separately agreed upon in writing.
11.2 Partner Auctions. Auctions conducted by third parties (such parties, an "Auction Partner", such actions, a "Partner Auction") may be conducted on the Services ("Online Partner Auction") or may be conducted in whole or in part outside of the Services ("Offline Partner Auction"). Auction Partners may have additional Seller Conditions which apply to Buyers. The Auction Partner has the right to refuse any Buyer's participation or reject any bid in their Partner Auction. The Auction Partner also has the discretion to award winning bids in live auctions. After a Partner Auction, the Auction Partner will contact winning bidders directly to collect payment, arrange for delivery or pickup of purchased Item, and conduct any other applicable post-sale activities.
11.2.1. Bidding in Offline Partner Auctions. Bids in Offline Partner Auctions may be collected in advance ("Advance Bidding") in which case bidding through the Services will close the day before the Offline Auction or at such other time as indicated on the Services or may be submitted through the Services during the Offline Partner Auction concurrently with non-Artsy bidders through our Live Auction Integration feature ("LAI" and "LAI Bidding"). Use of LAI is subject to the LAI Service Terms. Whether placed through Advance Bidding or LAI Bidding, bids in Offline Partner Auctions may be transferred to the Host Auctioneer or their representatives to execute against other bidders in the Offline Partner Auction. The Host Auctioneer may have different bidding increments than us, and Buyers agree that their Maximum Bid may be executed in the Offline Partner Auction according to the Host Auctioneer's bidding increments without further notice.
11.2.2. Absentee Bidding. We may offer absentee bidding services in connection with some Auctions, whereby we may collect bids via telephone, email and/or written forms ("Absentee Bidding Services"). All bids placed via Absentee Bidding Services are subject to our discretion and (as applicable) the discretion of the Host Auctioneer. We may refuse Absentee Bidding Services to any person at any time (even during an Auction) at our sole discretion, and we will have no liability for any failure or refusal to provide Absentee Bidding Services under any circumstances.
11.3 Bidding Information and Seller Communications. By registering for an Auction, you agree that we may provide the Auction Partner with your User Information (including any bidding information), and agree that the Auction Partner may contact you about your participation and transaction, and if the Auction Partner is an organization, otherwise regarding their organization.
11.4. Buyer's Premium. Buyers purchasing an Item offered in an Auction agree to remit the buyer's premium, if applicable. The buyer's premium is an additional fee that the Buyer is required to pay (in addition to any tax thereon), calculated as a percentage of the Item Price. The applicability and rate of the buyer's premium will be indicated on the Services. Sellers agree that we are entitled to retain any applicable buyer's premium, and will have no right or claim thereto, unless otherwise agreed.
11.5. Opening Bid; Estimates; Reserve; Bidding Increments. Pre-Auction high and low estimates, Item reserve, minimum opening bid or bidding increments, among other information may be published for Items in an Auction. If published, the reserve is the minimum price below which the Item will not be sold and is separately agreed between the Seller and Artsy. The reserve will not exceed the Item's low pre-sale estimate (if applicable). Estimates, opening bids and bidding increments may be set and revised at any time at our sole discretion, unless otherwise agreed. Estimates do not include the buyer's premium, shipping costs, taxes or other applicable charges and may not be relied on as a prediction of the selling price or the value of the Item. Neither Artsy nor the Seller will be liable for any difference between the pre-sale estimate of any Item and the actual price achieved in any Auction or upon resale.
11.6. Automatic Bidding. Our online bidding system is an automatic bidding system. When you place a bid on the Services, you enter the maximum amount that you are willing to pay for the Item ("Maximum Bid"). Your Maximum Bid can be the next minimum bid indicated on the Services or any greater amount. Our online bidding system will automatically place a bid for you at the amount of the next minimum bid according to our automatic bidding increments. It will then continue to bid automatically for you in response to competitive bid as necessary to maintain your position as the highest bidder, up to but not exceeding your Maximum Bid. When you bid on an Item with a reserve and your Maximum Bid meets or exceeds the reserve, the system will automatically increase your bid to meet the reserve, according to our automatic bidding increments.
11.7. Bids Are Binding. All bids are final once submitted and may not be canceled or modified by the Buyer, except with our express written consent under circumstances that we consider appropriate at our sole discretion. By placing a bid on an Item, the Buyer accepts personal liability for the Total Purchase Price and is required to complete the transaction if their bid is the winning bid. All bids placed through the Services, wherever accessed (including those placed in Offline Auctions, LAI, or via the Absentee Bidding Services (each as defined below)) are subject to the terms of this Agreement.
11.8. Countdown Clock and Closing. We may display a countdown clock on the Services in connection with some Auctions. This is provided for general informational use only and does not constitute any warranty as to the closing time of any lot. If you are interested in an Item, you should refer to its individual listing on the Services to see if bidding has closed and should not rely on the countdown clock. If a bid is placed on an Item during a set number of minutes before its original closing time, we will have the right at our sole discretion, but no obligation, to extend bidding for such Item for an additional set number of minutes after the original closing time, and may continue to extend bidding for such Item until such set number of minutes pass without any further bids being placed. The extension of one Item's closing time will not affect the closing time of any other Item. Please refer to the Item's listing page for the extension time set for that Item. You may need to refresh or reload the bidding page on the Services to see if bidding for an Item has closed.
11.9. Bidding Record. Our own internal records related to bidding through the Services will be final and binding in all disputes. In the event of any inconsistency between our own internal records and any information provided to any Buyer (whether on the Services, by email, text message, orally or otherwise), our own internal records will control.
11.10. Employee Participation. Artsy team members may use the Services as Buyers in their personal capacity (i.e. not as our employees, agents or representatives) as long as they do not have any confidential information about the Item they are bidding on (for example, the reserve of an Item). Likewise, if the Seller in an Auction is an organization, its team members may bid in that Auction in their personal capacity, as long as they do not have any confidential information about the Item they are bidding on. In all such cases, the team member is personally subject to this Agreement like any other Buyer.
11.11. Charitable Component. Buyers may receive letters acknowledging a component of their Total Purchase Price as a charitable contribution from the Seller. If a charitable confirmation letter is available, it will be noted on the individual lot page, and may depend on the winning price and Seller's discretion. Artsy does not provide charitable contribution confirmation letters.
11.12. Online Purchase Feature Availability. For some Items, the Online Purchase Features may be available in addition to competitive bidding in an Auction, in which case the Online Purchase Features will be available until the current Auction bid meets or exceeds the greater of the starting bid or the reserve. If the Item is purchased using the Online Purchase Features prior to such time, it will be withdrawn from the Auction pending completion of the Online Purchase.
11.13. Post-Auction Sale. Any post-Auction purchase of Items offered in an Auction shall be governed by these Terms as if it was purchased in the Auction.
12. Artist Resale Royalty. The laws of some countries entitle the artist or their estate to a royalty known as the “artist resale right.” The Seller is solely responsible for determining the applicability of the royalty and for remitting the royalty to the appropriate party. If applicable, as indicated on the Services, the Buyer is responsible for paying an additional amount equal to the royalty, which is calculated as a percentage of the Item Price (as defined below). Sellers agree that if we pay any such royalties with respect to any Item sold by the Seller without being reimbursed by the Buyer, the Seller authorizes us to retain such royalty as an amount owed to us by Seller when settling Seller’s account, and if we fail to do so in any case, Seller agrees to reimburse us for the full amount of such royalty by check as soon as practicable upon our request.
13. Commission; Referral Fees. We will be entitled to collect certain commissions or fees for some of our Services. Sellers agree to pay us a commission on each Purchase generated, initiated or completed through the Services, which is calculated as a percentage of the Item Price (as defined below), as agreed upon between us and each Seller. We may also be entitled to collect a commission or fee from Buyers in certain transactions, like the Buyer’s Premium in an Auction. Buyers and Sellers each acknowledge and agree that we may also pay commissions out of any Artsy Fees collected to third parties who refer Sellers, Buyers and/or Items to us or which we otherwise engage in connection with a transaction(s). Any action by a User to avoid paying Artsy a commission or fee is strictly prohibited, including for example, encouraging Buyers to complete Purchase outside the Services. Except as expressly otherwise provided, all commissions or fees are non-refundable, non-cancellable and must be paid in US Dollars.
14. Taxes.
14.1. Digital Services Tax. By Using our Services, you understand that we and you are engaging in a digital services transaction. As the service recipient, you are responsible for any taxes imposed as a result of your use of such Services, including but not limited to business-to-business consumption taxes. Any payment for the use of such Services is not subject to any withholding tax, unless required by law, and in such cases the payment shall be grossed up such that Artsy shall receive the same net amount that we would have received if no such tax(es) had applied.
14.2. Transactional Tax. Unless exempt by law and when completing an Item purchase, the Buyer is responsible for paying any applicable sales tax, use tax, VAT and/or any other taxes or levies that the Seller or we are required to collect, report and remit from the Buyer under applicable law ("Transactional Taxes"). The failure of the Seller or Artsy to collect and remit any Transactional Taxes from the Buyer will not relieve the Buyer of such obligation. Additionally, if neither Artsy or the Seller is required to collect Transactional Tax, the Buyer may be required to pay them directly to the applicable taxing authority. Unless expressly otherwise indicated, all prices listed on the Services are exclusive of tax. Sellers or Buyers claiming exemption from any Transactional Taxes are responsible for providing proper documentation upon request and to our satisfaction. Any delay in providing relevant documentation or a refund of any Transactional Tax will not justify the cancellation of any sale or any delay in paying the Total Purchase Price.
14.3. No Tax Advice. No statement made by us or any of our representatives, whether in writing or orally, on the Services or elsewhere, constitutes or may be relied upon as tax advice. We recommend you consult your own independent tax advisor with any questions.
15. Payment. Upon the confirmation of any Online Purchase, the sale contract between the successful Buyer and the Seller is concluded and the Buyer must pay the Total Purchase Price: (i) immediately upon the confirmation of a Purchase; or (ii) within 7 days of the close of an Auction or the confirmation of all other sales. Where a separate shipping invoice is issued to the Buyer, the Buyer must settle the invoice within 5 business days of the date of the invoice (each the “Payment Deadline”). Shipment of the Item will not be processed until the Total Purchase Price has been received from the Buyer in good and cleared funds.
15.1. Seller Payment Processing. Unless Artsy accepts payment under these Terms, the Buyer will pay the Seller directly, pursuant to the Seller’s payment terms. For the avoidance of doubt, Artsy's Buyer Guarantee does not apply to Purchases where Buyers pays the Seller directly.
15.2 Artsy Pay. We may accept payment from the Buyer on behalf of the Seller in connection with certain transactions, in which case we will notify the Buyer that we are doing so by email, by providing the Buyer with an option to check out in the Services or by otherwise notifying the Buyer on the Services (“Artsy Pay”). Payment may be accepted from Buyers by check, wire or bank transfer, or credit or debit card at our sole discretion, and we have no obligation to accept payment by any other means. We may execute a $0.01 authorization or temporary charge on any credit card you provide to verify that it is valid and active. This amount will be returned once the credit card is verified. You may not provide any Payment Method which you are not authorized to use. We may deny use of certain payment methods (including specific types of credit cards), place limits on any credit card order, and/or may use third party payment processors at our sole discretion. All Artsy Pay transactions must be conducted in the US Dollars (USD), British Pound Sterling (GBP) or Euro (EU) currency, as listed on the Item listing page. If an Item is listed in any other currency, payment must be made in USD, unless otherwise specified in writing. Users are responsible for bearing any foreign exchange fluctuations, paying any currency costs or bank, processing, surcharge or similar fees associated with their payment selection. Buyer Authorization. The Buyer irrevocably authorizes us to charge or debit the Total Purchase Price plus any additional costs incurred using any payment information the Buyer has provided, whether or not the Buyer has provided such payment information in connection with the transaction at issue. If any credit card or debit payment is not approved or reversed for any reason by the Buyer, the Buyer will remain personally liable for the Total Purchase and all other amounts otherwise due. The Buyer agrees to notify us directly in writing of any claims or issues regarding any payment made to us. We will not be liable to any Buyer or Seller if we permit any Seller to cancel an order because an authorization, charge or debit on the Buyer’s payment method is unsuccessful. Transaction Limits. As a security measure, we may impose transaction limits relating to the value of any transaction or remittance processed or the cumulative value or volume of all transactions or remittances processed during a certain period of time.
15.3 Buyer Default. If Buyer fails to remit the Total Purchase Price by the Payment Deadline, reverses any payment previously made, or otherwise fails to complete any transaction in accordance with this Agreement (“Buyer Default”), Artsy may exercise one or more of the following remedies:
15.3.1 reject or require a deposit for future bids or offers from the Buyer;
15.3.2 charge interest on all amounts owed from the Payment Deadline until the date received in cleared funds at the lesser of: (a) 15% per annum or (b) the maximum rate permitted by applicable law;
15.3.3 cancel the sale of the Item and/or retain any payment of the Total Purchase Price as liquidated damages;
15.3.4 resell the Item at Artsy’s discretion, it being understood that in the event such resale is for less than the original Item Price and Total Purchase Price for that Item, the Buyer will remain liable for the shortfall;
15.3.5 commence legal proceedings to recover the Total Purchase Price;
15.3.6 charge a cancellation fee equal to the fees or commission Artsy would have received on such Item or 15% of the Item Price, whichever is greater;
15.3.7 set off any outstanding amounts owed by the Buyer against any amounts which we may owe the Buyer;
15.3.8 release the Buyer’s User Information to the Seller to enable the Seller to commence legal proceedings to recover the amounts due;
15.3.9 charge the Buyer for any outstanding portion of such Total Purchase Price and any additional owed amounts using any Buyer Payment Method, whether or not the Buyer provided such payment method in connection with the transaction at issue; and/or
15.3.10 take such other action as we deem necessary or appropriate.
The defaulting Buyer will remain liable for the Total Purchase Price and is liable to us and the Seller for any and all additional costs, expenses (including reasonable attorneys’ fees), interest 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 return and resale of the Item at issue. Buyer agrees to these remedies without prejudice to any rights the Seller may have, or any other rights or remedies Artsy may have at law or equity. No Obligation. Any statement in this Agreement or elsewhere notwithstanding (whether written, oral or implied), we have no obligation to enforce any payment from any Buyer or to take any legal action or other action against any Buyer that fails to make any payment under any circumstances. Security Interest. As security to us for full payment by the Buyer of all outstanding amounts due to Artsy and our affiliates, Artsy retains, and the Buyer grants to us, a security interest in each Item purchased by the Buyer and in any other property or money of the Buyer in, or coming into, our possession. We may apply such money or deal with such property as the Uniform Commercial Code or other applicable law permits a secured creditor to do. We will notify the buyer if we exercise a lien over property in our possession because the Buyer is in default. Our security interest in any individual Item will terminate upon actual delivery of the Item to the Buyer or the Buyer’s agent. In the event the Buyer is in default of payment to any of our affiliates, the Buyer also irrevocably authorizes Artsy to pledge the Buyer’s property in our possession by actual or constructive delivery to our affiliates as security for the payment of any outstanding amount due. Artsy will notify the Buyer if the Buyer’s property has been delivered to an affiliate by way of pledge.
15.4. Owed Amounts and Collection Rights. You agree that we, on our own or our affiliates’ behalf, can collect any “Owed Amounts” arising from your use of the Services from you on a one-time, sporadic, or recurring basis by any or all of the following means: (i) charging or debit your Payment Method(s), whether or not such Payment Method was provided in connection with the transaction or Service at issue; (ii) invoicing you for such amounts, in which case you will pay the invoiced amount upon receipt; (iii) offsetting Owed Amounts from any amounts we have collected on your behalf or otherwise owe you under the Services; (iv) reversing any payments previously made to you; and/or (v) collecting payment by any other lawful means. Owed amounts vary by Service used but may include (a) the Total Purchase Price of an Item purchased by you; (b) applicable Artsy Fees; (c) taxes or other charges related to your use of the Services or purchase or sale of an Item which we are required to collect under applicable law; (d) amounts we have remitted to a third party on your behalf, such as shipping costs or artist resale royalties; (e) any liquidated damages, and (f) any costs or fees owed by you in connection with a cancellation or return. We will not be liable to you if we act in accordance with the provisions of this section.
16. Passage of Title and Risk of Loss. The New York Uniform Commercial Code will apply to the transfer of ownership between the Seller and the Buyer, unless the Buyer and the Seller agree otherwise. Risk of loss to each Item will pass when legal title to such Item passes to the Buyer.
17. Resale of Item. The Buyer may not re-offer any purchased Item for sale until the Buyer has paid for the Item in full and has otherwise assumed legal ownership and physical possession of the Item subject to this Agreement.
18. Shipping. The Buyer and Seller, and not Artsy, are solely responsible for the packing, handling, pickup, shipping and fulfillment of each Item and all risk and costs associated therewith, unless we otherwise agree in writing. We may, but are not obligated to, provide support in the shipping process, such as facilitating communication or payment between Buyer and shippers, or recommending third party shipping providers. At no time will we assume custody, physical possession, risk or responsibility for any property, unless otherwise specified in writing.
18.1. Release of Item. Seller agrees to release physical possession of the purchased Item within 7 days of Artsy's confirmation that the Buyer has paid the Total Purchase Price. If a Buyer requests to pick up the Item, Seller agrees to use reasonable efforts to make the Item available to the Buyer or notify Artsy and the Buyer immediately so that the Buyer can select an alternative delivery method.
18.2. Shipping and Related Costs. The Buyer is required to pay all shipping, packing and transit insurance fees and costs for purchased Items, unless Artsy or the Seller agree otherwise. Buyers must ensure that a valid delivery address is provided when purchasing an Item and Sellers must ensure an accurate pick-up location is provided when listing an Item. The Buyer may be required to pay additional shipping costs, storage fees or taxes if the Buyer: (i) delays in paying the Total Purchase Price; (ii) changes their delivery address or does not promptly confirm their delivery address after paying the Total Purchase Price; (iii) fails to disclose any delivery-location specific factors; (iv) fails to provide any required information or secure any necessary permits or licenses in a timely manner; or (v) otherwise fails to comply their obligations under the Agreement. As between Artsy, the Seller, the Buyer and the shipping provider, the Seller is responsible for paying all pre-collection warehouse, storage and insurance costs, as well as any fees associated with the release of the Item into free circulation. The Seller may be required to pay additional shipping costs if: (i) Artsy or the shipping provider determines that the Seller failed to accurately describe the Item on the Services or otherwise failed to provide information required to accurately quote shipping costs and transport, export or import the Item (such as the Item location or Item-specific characteristic); (ii) the Seller changes the pick-up location after the Buyer's bid was placed or offer was confirmed; (iii) the Seller does not adequately pack the Item; or (iv) the Seller otherwise fails to comply with their obligations under the Agreement.
18.3. International Shipments. If the Item is shipped internationally, the Seller or Buyer agrees to register for a customs number or provide personal information to the shipping company to facilitate shipping, if required. The Buyer is responsible to pay applicable customs duties, import taxes, and fees assessed upon the Item by its country of export and import into the Buyer's delivery country. The Buyer is also responsible for obtaining or completing any declarations, permits or licenses required to export and/or import the Item. Buyers should note that these additional charges are not included in the amounts collected by the Seller or Artsy and must be paid separately to the appropriate governmental authority (typically via the shipping company or customs broker). Buyers are also advised that: (i) cross-border deliveries are subject to opening and inspection by customs authorities; (ii) the laws of some countries may prohibit the resale of certain Items once it is imported into those countries; and (iii) some countries may reserve the right to purchase certain Items exported from those countries (sometimes called a "right of preemption"). Unless the Buyer and the Seller agree otherwise, any delay in obtaining or refusal of any required license or permit will not justify the cancellation of any transaction or any delay in paying the Total Purchase Price. For the avoidance of doubt, in accordance with our Restricted Materials Policy, Sellers are prohibited from listing and/or exporting restricted materials. It is solely the Buyer's responsibility to maintain all records required under the customs and/or other laws and regulations of the United States or other government agencies. The Buyer is required to review all documents and declarations prepared and/or filed with a customs authority, other government agencies, and/or third parties, and to immediately advise Artsy of any errors, discrepancies, incorrect statements, or omissions on any declaration or other submission filed on the Buyer's behalf.
18.4. Seller Shipping. When Seller arranges shipment, the Seller agrees to provide Artsy with shipment tracking details, and, if requested, a copy of the bill of lading and/or proof of delivery.
18.5. Artsy Shipping. Where Artsy arranges shipping on behalf of the Seller or Buyer ("Artsy Shipping"), the following additional terms and conditions apply:
18.5.1. Pre-Sale Shipping Estimates. Any pre-sale shipping estimates provided are for informational purposes only and do not include customs duties, fees or permit costs, if applicable. If a Buyer changes their delivery address after paying the Total Purchase Price, Artsy has the right in our sole discretion to reject such change and ship to the original delivery location. Artsy shall not be liable for any difference between the pre-sale shipping estimate and the final shipping cost. Notwithstanding any terms to the contrary, if the Buyer selects the "Parcel" or "Self Ship" shipping option, such as Standard shipping, Express shipping, or Rush shipping, the Seller shall be responsible for safely and securely packing the Item and supplying supporting photographs of the packed Item(s) at the Seller's cost.
18.5.2. Buyer Abandonment. If, as a result of Buyer's failure to provide information, communicate or cooperate with the Seller, shipper or Artsy in a timely manner and the Item has not been delivered within 30 days of the Payment Deadline, the Buyer agrees that they are deemed to have waived any post-delivery inspection period, including, as applicable the Buyer Guarantee. If the Item has not been delivered within 45 days of the Payment Deadline, Buyer agrees that they are deemed to have abandoned and forfeited the Item ("Abandonment") and we may take any action available to us under these Terms. Buyer expressly agrees that failure to receive any Item in the event of Abandonment does not relieve Buyer of its obligation to pay any fees or expenses.
18.5.3. Cancellation Fees. If the Buyer cancels shipment after paying the Total Purchase Price, in addition to any fees payable by the Buyer under section 15.3 (Buyer Default), the Buyer is responsible for paying Artsy the following cancellation fees based on the shipping service selected: (i) Premium: 50% of the original quote amount if canceled within 7 days of scheduled collection; (ii) Select: $150 if canceled within 1 day of scheduled collection; (iii) Parcel (Standard, Express, or Rush Shipping): $50 if canceled within 1 day of scheduled collection; or (iv) International: 50% of the original quoted amount if canceled within 7 days of scheduled collection.
18.6. In-Transit Damage or Loss. If the Item is lost or damaged while in transit and Seller has arranged shipping, the Seller agrees to use best efforts to work with the shipper to resolve the matter. Further, the Seller is responsible for: (i) insuring such shipments unless an alternative agreement was previously agreed with Artsy; (ii) accepting a return, refund, or discount on a lost or damaged Item; and (iii) in the case of a damaged-Item return, covering the cost of the return shipping costs. To the extent Artsy's Buyer Guarantee applies to the Item that is lost or damaged or sold not as described, the Seller will reimburse Artsy for any amounts paid to a Buyer pursuant to the Buyer Guarantee. When Buyer selects Artsy Shipping, any claim for in-transit loss or damage must be made in writing to Artsy no later than 2 business days after the latest expected delivery date or the Item has been delivered to the Buyer's location. Images documenting the claim for damage must be provided to Artsy and all original packing material must be saved to support any required investigation of the claim for loss or damage. Artsy is not responsible for negotiating with the insurance provider on your behalf, and you accept that all decisions made by the insurance provider, as communicated to you by Artsy, are final and binding and cannot be appealed, challenged, or reversed. Please note that if the Buyer waives a signature-upon-delivery requirement, the Buyer will not be permitted to submit a claim for loss or damage to the Item and Artsy's Buyer Guarantee will not apply.
18.7. Return Shipping Costs.
18.7.1. Buyers. Buyers are responsible for paying any return shipping charges if an Item is returned to the Seller or Artsy as a result of: (i) the Buyer's failure to provide a valid delivery address, pay any applicable customs duties, fees or costs, secure any required import/export permits, or provide any required information in a timely manner; (ii) the lack of a recipient to sign and accept delivery where necessary; (iii) Abandonment (as defined above); or (iv) any other Buyer's breach of the Buyer's obligations hereunder.
18.7.2. Sellers. Sellers are responsible for paying any return shipping charges if an Item is returned to the Seller or Artsy: (i) as a result of the Seller's breach of any of their representations, warranties or obligations hereunder (including the obligation to accurately describe the Item); or (ii) (if shipping was arranged by Seller) because the Item was damaged while in transit to the Buyer.
19. All Purchases are Final; Cancellations. All Purchases are final and may not be revoked or modified by the Buyer once submitted or by the Seller once confirmed, except as provided in this section or with our written consent under circumstances we consider appropriate at our sole discretion. If a Buyer wishes to withdraw their offer or cancel their transaction before it has been confirmed, Artsy will accommodate the request. Upon notice of Artsy's election to cancel a Purchase, Buyer will promptly return the Item to Artsy or the Seller, at our discretion, and we or the Seller will then refund the Total Purchase Price. If Artsy issues such refund to the Buyer on the Seller's behalf, Seller agrees we can charge the Seller for the same amount plus any fees incurred. The refund shall constitute the sole remedy and recourse of the Buyer or Seller against Artsy and the Seller or Buyer as applicable, with respect to such canceled Purchase. Artsy will have no liability whatsoever for taking any of the foregoing actions.
20. EU/UK Cancellation Rights. Pursuant to the European Union ("EU") Directive on Consumer Rights (2011/83/EC) and the UK Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, a consumer habitually residing in the EU or the UK (an "EU/UK Consumers") who purchases an Item from from a professional seller (a "trader", as that term is defined in Article 2 of 2011/83/EC) in the Services has a right to cancel their order, without liability and without cause, within 14 days of their or their authorized representative (other than the carrier) receipt of the Item (the "Cancellation Period"). This cancellation right is not applicable to EU/UK Consumers who participate in live/public auctions through the Services or to Items made to the Buyer's specifications. To exercise this right, the EU/UK Consumer must inform the Seller through a clear statement (i.e., a letter sent by post or e-mail) before the expiration of the Cancellation Period; see here for a model cancellation form. The EU/UK Consumer must send back the Item following the instructions of the Seller (but in all cases, with at least 14 days to return the Item from the date of cancellation). The EU/UK Consumer is required to bear the cost of returning any Item to the Seller. The Seller will refund all payments received from the EU/UK Consumer for the purchased Item. Any refund may be withheld and title and risk of loss reverts back until and when the Seller has received the Item back from the EU/UK Consumer. The Seller may make a deduction from the refund for loss in value of the Item returned due to the EU/UK Consumer's handling of the Item beyond what is necessary to establish the nature, characteristics and functioning of the Item. Where Artsy is not the Seller of the Item but where the EU/UK Consumer has paid shipping charges directly to Artsy or to a third party shipping provider, the EU/UK Consumer will not be refunded for such shipping charges.
21. User Disputes. We do not endorse and are not responsible for the services, policies, conduct, performance or non-performance of any User or third-party (including any Third Party Service provider), even if such User or Third Party Service is recommended by us or otherwise made available through the Services. You must resolve any dispute you have with any User or third party ("User Dispute") directly with that party. We may attempt to help you resolve such User Dispute in good faith based solely on our interpretation of our Policies, but are not required to do so. We will not make judgments regarding legal issues or claims. Our decision is final and binding on all parties and cannot be appealed, challenged or reversed, including, without limitation, the applicability or resolution of any matter related to any Buyer Guarantee. You agree to cooperate with us in a timely manner in any investigations that we may choose to conduct, as permitted by applicable law. Communication for orders and transactions should be performed on the Services.
22. Seller Representations and Warranties. The Seller represents and warrants to Artsy and the Buyer that: (i) they are the sole owner of the Item or are duly authorized by the owner(s) of the Item to offer and sell such Item; (ii) good and marketable title and right of possession to the Item will pass to the Buyer free from any claims, liens or other encumbrances of any third party, including but not limited to claims of governments or governmental agencies; (iii) the Item is authentic and Seller has no reason to believe otherwise; and (iv) if applicable, the Item has been lawfully imported into the jurisdiction in which it is currently located and lawfully exported subject to the Laws of the country in which it was formerly located, and any taxes and/or duties on such import and export have been paid (together the "Seller Warranty"). Sellers agree that the Seller Warranty is for the benefit of Artsy and the Buyer of the Item, that such Seller Warranty will survive this Agreement and the transactions contemplated by these Agreement. Sellers agree to immediately notify us in writing of any event or information that may cause the Seller Warranty to be inaccurate or breached in any way.
22.1. Seller's Authorship Warranty. The Seller warrants to the Buyer for a period of 1 year from the sale date (the "Authorship Warranty Period") that an Item of a named authorship is authentic and is not a forgery ("Authorship Warranty"). This Authorship Warranty: (i) does not apply to Items whose description of authorship on the Services as of the sale date corresponded with the generally accepted opinion of scholars or experts or indicated that there was a conflict of opinions; (ii) does not apply to Items whose authorship as described on the Services as of the sale date is proved inaccurate by means of a scientific process not generally accepted for use until after the sale date or a process which as of the sale date was unreasonably expensive or impractical or likely to have caused damage to the Item; (iii) is non-transferable and applies only to the original Buyer, and not to their successors or assigns or any other party and is automatically voided upon the Buyer's disposition in the Item to any third party; and (iv) "authorship" means only the creator of the Item, or the period, culture, source or origin of the Item, as the case may be, as described in the Item's listing. Provided that none of the exclusions above apply, the Seller agrees to cancel the sale and refund the Total Purchase Price of the Item to the Buyer, subject to the following terms and conditions: (i) if more than 180 days after the delivery date, the Buyer must notify the Seller within 60 days of receiving information which causes the Buyer to believe Authorship Warranty has been breached, and in any case prior to the expiration of the Authorship Warranty Period, and must provide such information to the Seller; and (ii) the Buyer must return the Item to the Seller in the same condition as it was in as of the date the sale closed. The Seller is responsible for the cost of such return shipping. If the Buyer notifies the Seller of such breach more than 180 days after the delivery date, the Seller reserves the right, as a condition to canceling any sale under the Authorship Warranty, to require that the Buyer obtain, at the Buyer's expense, the written opinions of two (2) independent and recognized experts in the field mutually acceptable to the Buyer and the Seller. The Seller will not be bound by any expert opinions produced by the Buyer and reserves the right to obtain additional expert opinions at the Seller's own expense. If expert opinions determine the work is inauthentic, Seller will also reimburse Buyer for expert opinion costs. The activities described in this section 22.1 will be conducted solely by the Buyer and the Seller. We will have no responsibility to the Buyer or the Seller in these regards. To the extent Artsy's Buyer Guarantee applies to with respect to the authenticity of any Item, the Seller will reimburse Artsy for any amounts paid to a Buyer pursuant to such Buyer Guarantee. Buyer acknowledges and agrees that notwithstanding any terms to the contrary, the cancellation of the sale and refund of the Total Purchase Price subject to the above terms and conditions will be the Buyer's sole and exclusive remedy for any breach of the Authorship Warranty, in place of any other remedy or recourse that might otherwise be available at law or in equity.
23. Indemnification. You will defend, hold harmless and indemnify Artsy, and their respective directors, officers, employees, representatives, agents, successors and assigns, and the Buyer or Seller, as applicable, from and against any loss, damage, judgment, settlement, expense, interest and any other liability (including reasonable attorneys' fees and costs) related to or arising out of any third party allegation, claim, lawsuit or proceeding ("Third Party Claim"), to the extent that the Third Party Claim is based on your: (i) Items, including listing, sale and fulfillment, refund, cancellation or return, and use of the Services including User Content; (ii) your actual or alleged breach of the Agreement, including Buyer or Seller representations; (iii) violation of any applicable Laws, including tax registration, collection, or remittance; (iv) your interactions with any other User, or (v) negligence, willful misconduct, or strict liability. We reserve the right to assume exclusive control of the defense or settlement of any matter subject to indemnification by you, in which case you agree to fully cooperate with us in conducting such defense. In any case, you agree not to settle any such matter without our prior written consent.
24. Disclaimer of Warranties; Limitation of Liability.
24.1. "AS IS; AS AVAILABLE." YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK. THE ARTSY SERVICES AND ALL ITEMS, CONTENT, FEATURES, OPINIONS, RECOMMENDATIONS, INFORMATION OR MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. ARTSY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE ARTSY SERVICES OR THE ITEMS, CONTENT, FEATURES, OPINIONS, RECOMMENDATIONS, INFORMATION OR MATERIALS MADE AVAILABLE TO YOU THROUGH THE ARTSY SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING.
24.2. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ARTSY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OR ASSUME ANY LIABILITY OF ANY KIND INCLUDING BUT NOT LIMITED TO AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, SIZE, QUALITY, CONDITION, COLOR, ATTRIBUTION, AUTHENTICITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITION HISTORY, LITERATURE OR HISTORICAL RELEVANCE, TITLE, NON-INFRINGEMENT, SECURITY, ACCURACY, VALUE, INVESTMENT WORTHINESS, ANTICIPATED OR ACTUAL SELLING PRICE, REPRODUCTION OR INTELLECTUAL PROPERTY RIGHTS, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OR TRADE. ARTSY DOES NOT WARRANT THAT THE SERVICES, ITEMS, SOFTWARE, CONTENT, FEATURES, OPINIONS, RECOMMENDATIONS, INFORMATION OR MATERIALS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE ARTSY SERVICES, SERVERS OR ELECTRONIC COMMUNICATIONS WILL BE SECURE, AVAILABLE, UNINTERRUPTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
24.3. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ARTSY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, UNLESS OTHERWISE SPECIFIED IN WRITING. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY FOR ANY CLAIM OR LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES OR THE TRANSACTIONS CONTEMPLATED IN CONNECTION THEREWITH WILL NOT EXCEED THE GREATER OF (I) ONE-HUNDRED U.S DOLLARS (US$100.00) OR (II) THE TOTAL AMOUNT YOU PAID US (IF ANY) TO USE OUR SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
24.4. BECAUSE ARTSY IS NOT INVOLVED IN TRANSACTIONS BETWEEN SELLERS AND BUYERS OR OTHER THIRD PARTIES, EACH PARTY RELEASES ARTSY FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL AND CONSEQUENTIAL), LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS' FEES), OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY USER DISPUTE, USER CONTENT OR THIRD-PARTY SERVICE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. 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.
25. Notice; Electronic Communications. You consent to receive all agreements, notices, disclosures, invoices, and other communications ("Notice") electronically. We may provide Notice to you by making them available on the Services or by emailing you at any email address you provide us, thereby satisfying any "in writing" requirement. Please refer to our Privacy Policy to learn more about your choices regarding electronic communications or contact us at privacy@artsy.net. Please note that you may not be able to participate in certain Services if you unsubscribe.
26. Disputes; Arbitration Agreement; Applicable Law. By using any Artsy Service, you agree that the Agreement is governed by and will be construed under the Federal Arbitration Act, applicable US federal law and the laws of the state of New York, without regard to the principles of conflict of laws or the Convention on Contracts for the International Sale of Goods.
26.1. Arbitration Agreement. Both you and us acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of the Agreement, Artsy's officers, directors, employees and independent contractors ("Personnel") are third-party beneficiaries of the Agreement, and that upon your acceptance of the Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms and Agreement against you as the third-party beneficiary hereof. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of the Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York, USA. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the "Rules") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. The Rules will govern payment of all arbitration fees. We will pay all arbitration fees for claims less than $50,000. We will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
26.2. Small Claims Court; Infringement. Either you or us may assert claims, if they qualify, in small claims court in New York City. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
26.3. Waiver of Jury Trial. YOU AND ARTSY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and us are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and us over whether to vacate or enforce an arbitration award, YOU AND ARTSY WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
26.4. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Artsy are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in section 26.6.
26.5. Opt-out. You have the right to opt out of the provisions of this section by sending written notice of your decision to opt out to the following address: 401 Broadway, 24th Floor, New York, New York 10013, USA, postmarked within 30 days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
26.6. Exclusive Venue. If you send an opt-out notice, and/or in any circumstances where the foregoing arbitration agreement permits either you or us to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and us agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in New York, New York.
27. Relationship of Parties; Third Party Beneficiaries. You and we are independent contractors under this Agreement. Nothing expressed or implied from the Agreement will create any agency, partnership, joint venture, employment, fiduciary, trustee, sales representative or franchise or exclusive relationship between you and us. You will not represent yourself as our agent to any third party and have no authority to make or accept any offer or representation on our behalf. Nothing in the Agreement is intended or will be construed to give any party other than you or us any legal or equitable right, remedy or claim under or with respect to the Agreement, unless otherwise expressed in writing.
28. Modification; Severability. We may make changes to our Services, Terms, Service Terms, Policies and the Agreement at any time and without notice to you by posting the current version to the Services with immediate effect. When required (for example, material changes that impact your obligations), we provide you with 15 days notice by posting changes to the Service to which the changes relate, by sending you an email notification or by similar means. If any provision of the Agreement is deemed invalid, void or unenforceable for any reason, that provision will be enforced to the maximum extent permitted or shall be deemed severable, and the Agreement will otherwise remain in full force and effect. If you do not agree with any change, you should stop using the Services. Changes to these Terms must be signed in writing by an authorized representative and cannot be modified by a purchase order.
29. Termination; Survival. You may stop using our Services at any time, subject to any Service Terms or other agreements between you and us. On termination of the Agreement, all related rights and obligations under the Agreement immediately cease, except that (i) you will remain responsible for performing all of your obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination, and (ii) sections 2, 3, 8, 20, 22-24, 26-30 of these Terms survive.
30. Miscellaneous. No delay or failure by us to exercise or enforce any right or provision of this Agreement will be considered a waiver. No right or remedy under this Agreement will be considered waived by us unless the waiver is in writing and signed by an Artsy representative who intends and is duly authorized to agree to the waiver on our behalf; email is insufficient for any waiver. No single or partial exercise by us of any right or remedy under this Agreement will prevent us from exercising any other right or remedy. Headings used in this Agreement are for convenience only and have no legal or contractual effect.
30.1. Force Majeure. The impacted party will give notice that a force majeure event is delaying or preventing its performance as soon as reasonably possible and will use commercially reasonable efforts to minimize the effects of the force majeure event.
30.2. Assignment. The Agreement will be binding on, inure to the benefit of and is enforceable by and against each party and their respective permitted successors and assigns. You are not permitted to assign, transfer or sub-license the Agreement or any right or obligation under the Agreement without our prior written consent. We may transfer or assign the Agreement and our rights and obligations without your consent.
30.3. International Use. The version of the Agreement in English is the definitive legal version. Any translations are for ease of reference only. Our Services are based in the United States and we do not represent or warrant that our Services will be appropriate or available for use outside the United States. If you are located outside the United States, you are responsible for ensuring your access to and use of our Services complies with applicable Laws. Please refer to our Privacy Policy regarding transfers of data to the United States.
30.4. Mobile Application. We may offer you the use of Artsy mobile applications, including applications that may be accessed through the iTunes App Store ("iTunes-Sourced Apps") and applications that may be accessed by other means. Your use of our mobile applications is subject to these Terms and any applicable Service Terms that we may post on our Services or otherwise make available to you in connection with our mobile applications. The following terms and conditions in this section apply to iTunes-Sourced Apps: (i) you agree to use iTunes-Sourced Apps only on an iPhone/iPad OS product that you own or control, and as permitted by the App Store Terms of Service; (ii) you acknowledge that these Terms are an agreement between you and us, and not with Apple, and Artsy, not Apple, is solely responsible for iTunes-Sourced Apps and the content of iTunes-Sourced Apps; (iii) you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iTunes-source App; (iv) if any iTunes-Sourced App fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for such iTunes-Sourced App to you. To the fullest extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to any iTunes-Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of any iTunes-Sourced App to conform to any warranty will be our sole responsibility. However, please note that we expressly disclaim all warranties to the fullest extent permitted by applicable law; (v) you and we acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to any iTunes-Sourced App or your possession and use of any iTunes-Sourced App, including: (a) product liability claims; (b) any claim that any iTunes-Sourced App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (vi) you and we acknowledge that, in the event of any claim by any third party that any iTunes-Sourced App or your possession and use of any iTunes-Sourced App infringes that party's intellectual property rights, as between Artsy and Apple, Artsy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of such claim to the extent required by these Terms; (vii) by downloading or using any iTunes-Sourced App, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not on any U.S. Government list of prohibited or restricted parties; and (viii) you and we acknowledge that Apple and Apple's subsidiaries are third-party beneficiaries of these Terms as relates to iTunes-Sourced Apps and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms as relates to iTunes-Sourced Apps.
30.5. Feedback. We welcome feedback about our Services. You agree that we will be free to use, disclose, reproduct, modify, license, transfer and exploit any feedback, for any and all purposes, commercial or otherwise, without any obligation of any kind to you. In any case, we will have no obligation to act on, use or respond to any feedback in any way.
30.6. Effective Date. These Terms are effective as of May 1, 2024.
31. Contacting Artsy. If you have any questions, please email us at: suppport@artsy.net. Artsy is located at: 401 Broadway, 24th Floor, New York, New York 10013, USA.
