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NEWLYN SCHOOL OF ART
TERMS AND CONDITIONS FOR ONLINE POST AUCTION SALES
1. Definitions and interpretation
1.1 To make these Terms and Conditions for online post auction sales (“Terms”) easier to read, we have given the following words a specific meaning:
‘Agent’ means Newlyn School of Art registered in England as a company limited by guarantee with company number 07621257 whose registered office is at The Old Board School, Chywoone Hill, Newlyn, Penzance, Cornwall, TR18 5AW;
‘Buyer ’ means a person who purchases Goods from the Seller via our Platform;
‘Consumer’ means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession;
‘Consumer Contracts Regulations’ means the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013;
‘Goods’ means the artworks that the Sellers consign to us for sale on our Platform;
‘Listing’ means a listing of Goods for sale on the Platform;
‘Listing Period’ means the period ending at 8pm on Friday July 31st 2020.
‘Lot’ means Goods or group of Goods offered for sale as one unit.
‘Platform’ means the part of the Website on which the Goods are made available by the Seller and us for purchase by you;
‘Price’ means the Price of the Goods set out on the Platform (to which VAT and delivery costs will be added) total of the Hammer Price and delivery costs;
‘Sellers’ means the owner of the Goods and ‘Seller’ shall be construed accordingly;
‘Terms and Conditions for Online Post Auction Sales’/‘Terms’ means these terms and conditions;
‘VAT’ means any value added tax or equivalent sales tax which may be applicable to the Lot or Lots sold and to any other charges payable by the Buyer; and
‘Website’ means our Website available at www.newlynartschool.co.uk;
In these Terms the words ‘you’, ‘yours’, etc. refer to you as the Buyer. The words ‘we’, ‘us’, ‘our’ etc. refer to the Agent. Any reference to a ‘Clause’ is to a clause of these Terms unless stated otherwise.
2. Information that we are required to give to Consumers
2.1 A description of the main characteristics of a Lot is contained in the Listing for that Lot revealed by clicking on ‘Full Details’. This description will also be contained in the Order Confirmation referred to in Clause 3.4.
2.2 Our name, address and contact details are set out on our Website.
2.3 The technical means for concluding the contract including the Price of the Goods and arrangements for payment to buy Lots are set out in Clause 3.
2.4 Your right to cancel your purchase of a Lot and to receive a refund as set out in Clause 7 and 8 (provided you return the Lot to us at your own cost) and a copy of the Model Cancellation Form (attached).
2.5 We and the Sellers have a legal duty to supply Lots to you in accordance with these Terms.
2.6 If you have any complaints, please send them to us directly at the address set out on our Website.
3. Ordering Goods from us
3.1 You must click the ‘Full Details' grey box below an image and complete the order form on the Platform. When you place your order we will acknowledge it by way of an acknowledgement email but this does not mean that your order has been accepted and your order will not be capable of acceptance by us if you do not supply full contact and delivery address details.
3.2 We may contact you to say that we do not accept your order if it is reasonable for us to do so (including if there has been a mistake on the pricing or description of the Lot or we are no longer allowed to arrange the sale of the Lot on our Platform) and We and/or the respective Seller(s) may withdraw any Lot(s) from the Platform at any time prior to payment being taken and the contract concluded.
3.3 If a Seller is charging VAT then the Price is exclusive of VAT which will be added to the Price. Delivery charges will also have VAT applied to the cost of delivery by the carrier.
3.4 We will only accept your order when we have received payment in cleared funds following us calling you to take payment and arrange delivery which we will do as soon as practicable following the acknowledgement referred to in clause 3.1. The total amount due is payable in any way that we agree to accept which is ordinarily by debit or credit card over the phone and we do not accept cash At this point we will email you to confirm this (Order Confirmation). At this point a legally binding contract will be in place between us and we will dispatch the Lot to you.
3.5 The Order Confirmation will include the following information:
3.5.1 the description of the Lot that you have successfully bid for;
3.5.2 the Price for the Lot plus applicable VAT and delivery charges;
3.5.3 confirmation of the anticipated delivery date(s) and time(s);
3.5.4 details of your right to cancel the Contract and a model cancellation form;
3.5.5 details of our legal duty to supply the Lot in conformity with these Terms;
3.5.6 details of your right to return the Lot and receive a refund if the Lot is a Deliberate Forgery; and
3.5.7 our identity, address and contact details, and how you can complain.
3.6 Please note that:
3.6.1 You will be deemed to act as principals, even if you are acting as an agent for a third party; and
3.6.2 We will not make deliveries to any address outside of the United Kingdom.
3.7 We reserve the right to cancel the Contract on behalf of the Seller in (amongst others) the following situations, without being liable for any damage or costs:
3.7.1 your contact or billing information is not correct or not verifiable;
3.7.2 your payment fails to clear or is in anyway recalled by the paying bank/processor
4. The contract between you and the Seller
4.1 As set out at Clause 3.4 above, we will confirm acceptance of purchase of a Lot to you by sending you an Order Confirmation by email. The contract for the purchase of the Lot between you and the Seller will be formed when we send you the Order Confirmation, unless due diligence information required by the Seller or us under the Money Laundering Regulations 2019 in accordance with their internal procedures remains outstanding, in which case the contract will be formed when that procedure has been completed.
4.2 If you breach these Terms, you may be responsible for damages and/or losses suffered by a Seller or us. If we are contacted by a Seller who wishes to bring a claim against you, we may at our discretion provide the Seller with information or assistance in relation to that claim.
4.3 We act as an agent only and will not have any responsibility for default by the Seller.
5. Data check
5.1 When you submit an order, we may run some checks on it before it is fulfilled. These checks may include verifying your address, creditworthiness, and checking for fraud. As to the latter, we may run partly automated checks on all bids to filter out unusual or suspect transactions, or transactions which can be identified as susceptible to fraud. Suspected fraud on our online auctions will be investigated and if necessary prosecuted. By submitting your order, you agree to this.
6. Title and delivery of purchases
6.1 Once you have paid us in full the total amount due for any Lot, the delivery charges and all applicable VAT ownership of that Lot will transfer from the Seller to you. We will not deliver a Lot until you have paid for it.
6.2 We, as agents for the Seller, will arrange delivery of the Lot to your requested delivery location. You will need to be available on the designated delivery day which will be notified to us by the Seller’s delivery agents to take delivery of the Lot. Unfortunately, due to the specialised nature of the transport of the Goods we cannot be more precise in terms of delivery details.
6.2.1 If you do not accept the Lot on the delivery date then you will be responsible for further delivery, storage and insurance costs in relation to that Lot.
6.2.2 Risk of loss or damage to the Lot will pass to you when you (or your agents) take physical possession of the Lot.
7. Right to cancel
7.1 If you are contracting as a Consumer, you will have a statutory right to cancel your purchase of that Lot if you change your mind for any reason. The provisions below set out your legal right to cancel. Further advice about your legal right to cancel your purchase is available from your local Citizens Advice or Trading Standards office.
7.2 You may cancel your purchase at any time from the date of the Order Confirmation up to the end of the fourteenth day after the day of delivery of the Lot to you (or the person specified by you for delivery).
7.3 To cancel your purchase, you must inform us of your intention to cancel it by sending your Order Confirmation and the model cancellation form attached to these Terms. If you use this method we will email you to confirm that we have received your cancellation. You can contact us at 01736 365557 or send us an email to email email@example.com. If you send us your cancellation notice by email or by post, then your cancellation is effective from the date you send us the email or post the letter to us.
7.4 If you exercise your right to cancel your purchase, we, subject to the provisions of clause 12, will refund to you, on behalf of the Seller, the amount that you have paid including delivery costs. When exercising the cancellation right, you must return the Lot to us immediately at your own cost (as set out below).
7.5 You are entitled to a reasonable opportunity to inspect the Lots (which will include removing them from their packaging and inspecting them). At all times, you must take reasonable care of the Lots and must not let them out of your possession. If you are in breach of your obligations to take reasonable care of the Lots in this Clause 11.5, we will have a claim against you and may deduct from the refund costs incurred by us as a result of the breach.
7.6 Details of this statutory right, and an explanation of how to exercise it, are also provided in the Order Confirmation. This provision does not affect your statutory rights.
7.7 The cancellation right described in this Clause is in addition to any other right that you might have to reject a Lot.
8. Exercising the right to cancel
8.1 Where you have validly returned a Lot to us under your right of cancellation described in Clause 7, we will refund the full amount paid by you for the Lot.
8.2 Please note that we are permitted by law to reduce your refund to reflect any reduction in the value of the Lot, if this has been caused by your handling of the Lot in a way contrary to the conditions specified in these terms or which would not be permitted during a pre-sale exhibition. If we refund you the price paid before we are able to inspect the Lot and later discover you have handled the Lot in an unacceptable way, you must pay us an appropriate amount.
8.3 You will be responsible for returning the Lot to us at your own cost. We cannot be precise in terms of the amount that it will cost you to return the Lot to us which will vary depending on the size and weight of your Lot but you should use our costs as a guideline.
8.4 We will process any refund due to you within the deadlines below:
8.4.1 if you have collected the Lot but have not returned it to us: fourteen days after the day on which we receive the Lot back from you or, if earlier, the day on which you provide us with evidence that you have sent the Lot back to us; or
8.4.2 if you have not collected the Lot or you have already returned the Lot to us: fourteen days after you inform us of your decision to cancel the Contract.
8.4.3 We will refund you using the same means of payment that you used for the transaction.
8.4.4 Legal ownership of a Lot will immediately revert to the Seller if we refund any such payment to you.
8.4.5 For further information on how to return Lots to us, please get in touch with us using the contact details provided on our Website.
9. Descriptions and condition
9.1 Our descriptions of the Lot will be based on information provided to us by the Seller of the Lot (for which we are not liable).
9.2 Please note that the images of the Lots on our Website are for illustrative purposes only and although we have made every effort to display the size and colours accurately we cannot guarantee that a device’s display of the colours and size accurately reflects the colours and size of the Lots.
9.3 Please note that Lots are sold ‘as is’. Neither we nor the Seller accept any liability for any condition issues affecting a Lot if such issues are included in the description of the Lot in the Listing or are revealed by photographs of the Lot appearing on the Listing.
10. Warranties, Our disclaimers and liability to you
10.1 The Seller warrants to us and to you that: (i) the Seller is the true owner of the Lot for sale; and (ii) the Seller is able to transfer good title to the Lot to you free from any third party rights or claims.
10.2 The Website and the Platform are provided by us or our service providers without any warranties or guarantees. All users of our Website and/or the Platform bear the risks associated with the use of the internet.
10.3 Both our Website and Platform provides content from users, internet sites or resources. While we try to ensure that material included on our Website and/or the Platform is correct, reputable and of high quality, we cannot accept responsibility if this is not the case. Except as expressly set out herein, we will not be responsible for any errors or omissions or for the results obtained from the use of such information or for any technical problems users may experience with the Website and/or Platform. If we are informed of any inaccuracies in the material on our Website or the Platform we will attempt to correct the inaccuracies or ask our service providers to do so as soon as we reasonably can.
10.4 You acknowledge that the Website and the Platform are provided as is for public use, subject to registration. Registration is free of charge and as such we have no responsibility to users of our Website and/or the Platform for any downtime or errors on our Website or the Platform. If, because of errors on our Website and/or the Platform an order cannot be completed, our only responsibility to you is to enable Sellers to re-list Goods once our Website and/or the Platform is back up. In particular, we will not be liable for any loss of opportunity or disappointment suffered as a result of an order not being received by us.
10.5 In addition, neither we nor the Seller shall be responsible to you and you shall not be responsible to the Seller or us for any loss or damage any of us suffer that is not a foreseeable result of any of us not complying with the Terms. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen.
10.6 Your rights are primarily enforceable against the Seller as principal to the contract with you for the contract for the sale and purchase of your Lot. Notwithstanding that, subject to Clause 10.7, if we are found to be liable to you for any reason (including, amongst others, if we are found to be negligent, in breach of contract or to have made a misrepresentation), our liability will be limited to the total purchase Price paid by you for any Lot.
10.7 Notwithstanding the above, nothing in these Terms limits the liability of us or employees or agents for:
10.7.1 death or personal injury resulting from negligence of our employees, agents or subcontractors;
10.7.2 fraud or fraudulent misrepresentation; or
10.7.3 any liability which cannot be excluded by law.
11. Consumer Rights
11.1 If you purchase a Lot as a Consumer, a number of additional terms may be implied by law in addition to the Seller’s warranties (in particular under the Consumer Rights Act 2015). These Terms do not seek to exclude your rights under law. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
12.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
12.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
12.1.2 sent by email to the address provided by each party.
12.2 Any notice shall be deemed to have been received:
12.2.1 if delivered by hand, on signature of a delivery receipt; and
12.2.2 if sent by pre-paid first-class post next working day delivery service, 24 hours after it was posted; and
12.2.3 if sent by email, at the time of transmission.
12.2.4 This clause 12 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13. Data Protection
13.1 We will only use your personal information as set out in these Terms for the purposes of the buying and selling of a Lot. Please see our general terms and conditions for further information.
14.1 We act as an agent for our Sellers. The rights we have to claim against you for breach of these Terms may be used by either us, our employees or agents, or the Seller, its employees or agents, as appropriate. Other than as set out in this Clause, these Terms are between you and us and no other person will have any rights to enforce any of these Terms.
14.2 We may use special terms in the Listing for particular Lots. You must read these terms carefully along with any glossary provided on our Website.
14.3 The contract for the sale and purchase is between the Buyer and the Seller and us as Agent for the Seller. No other person shall have any rights to enforce any of its terms.
14.4 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
14.5 We may change these Terms from time to time, without notice to you. Please read these Terms carefully, as they may be different from the last time you read them.
14.6 Except as otherwise stated in these Terms, each of our rights and remedies are:
14.6.1 are in addition to and not exclusive of any other rights or remedies under these Terms or general law; and
14.6.2 may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under these Terms is not a waiver of that or any other right. Partial exercise of any right under these Terms will not preclude any further or other exercise of that right or any other right under these Terms. Waiver of a breach of any term of these Terms will not operate as a waiver of breach of any other term or any subsequent breach of that term.
14.7 These Terms and any dispute or claim arising out of or in connection with them (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
MODEL CANCELLATION FORM
(Complete and return this form only if you wish to withdraw from the contract)
To: Newlyn School of Art
The Old Board School
I/We hereby give notice that I/We cancel my contract of sale of the following goods,
Brief description of Lot:………………………………
Name of consumer:…………………………………….
Signature of consumer(s) (only if this form is notified on paper),