CONDITIONS OF SALE
RISK AND TITLE
Risk of loss and damage to artworks sold by Derek Johns Limited (the "Artwork(s)") shall pass to the buyer on the earlier of (a) delivery of the Artwork(s) to the buyer and (b) payment to Derek Johns Limited (the "Seller") of the amount shown on the invoice. From the time of risk passing, the buyer must insure the Artwork(s) against all risks including during shipping.
Title to the Artwork(s) shall pass to the buyer upon payment in full of the amount shown on the invoice.
The Seller shall disclose to the buyer relevant information on the Artwork(s) in its possession at the time of the sale. The Seller does not represent or warrant that such information is complete or accurate, as much of the information on provenance in particular is derived from third parties and cannot be verified. As a matter of policy, the Seller will run a search of the database of the Art Loss Register, but it does not undertake to conduct any further research on title. If the Seller is on notice that the Artwork(s) may have been looted during the Nazi era, it will notify the buyer, however it makes no representation nor gives any warranty to the buyer that the Artwork(s) were not looted during the Nazi era.
The price of the Artwork(s), including any delivery costs and VAT, shall be paid in full without deduction on the earlier of (a) expiry of the payment term shown on the invoice and (b) the time of delivery of the Artwork(s) to the buyer. Payment shall be by wire transfer or banker's draft unless another method of payment is agreed. Payment shall be made in the currency specified on the invoice.
Time of payment shall be of the essence. Interest will accrue on any late payment on a daily basis at the rate of 6% per annum above [your bank] Base Rate from time to time, from the due date until payment has been made in full.
If the Seller authorizes the buyer to take possession of the Artwork(s) before payment is made in full, the buyer shall hold the Artwork(s) as bailee for the Seller, and except with the Seller's prior written consent, shall: (a) maintain possession of the Artwork(s), and procure that the Artwork(s) is/are not sold, exported, pledged, charged, disposed of, or otherwise dealt with; (b) in the case of an Artwork consisting of more than one item, keep those items together; (c) keep the Artwork(s) identified as belonging to a third party, and store it/them at his premises separately from his own goods or those of any other person; (d) at all times allow the Seller or its agent access to the Artwork(s) and provide facilities for inspection; (e) maintain the Artwork(s) in satisfactory condition, keep it/them insured on the Seller's behalf for its full price against all risks and on request, produce the policy of insurance to the Seller; (f) hold any insurance proceeds of the Artwork(s) on trust for the Seller and not mix it with any other money, nor pay the proceeds into an overdrawn bank account; and (g) preserve the Artwork(s) in an unaltered state and in particular not undertake any work of restoration, repair, cleaning or reframing.
If (a) the buyer fails to pay in full for the Artwork(s) in accordance with these Conditions of Sale, or (b) at any time before payment in full an act or proceeding occurs or commences whether in the United Kingdom or elsewhere involving the buyer's solvency such as the presentation of a bankruptcy or winding up petition or the convening of a meeting to wind up voluntarily or application for interim order for a voluntary arrangement or for the appointment of an administrative or other receiver, or (c) the buyer does or fails to do anything which may in any way imperil the Seller's title to the Artwork(s), the Seller may at any time thereafter repossess the Artwork(s) and/or cancel the sale with or without notice. Moreover, the buyer agrees that he will at the Seller's request, return the Artwork(s) to the Seller at his cost at such address as the Seller may nominate in London or at its option, the Seller may enter the premises where the Artwork(s) is/are kept and the buyer shall at Seller's request inform it of its whereabouts.
The buyer shall not be entitled to the benefit of any set-off and all sums due to the Seller shall be paid without any deduction whatsoever.
EXPORT AND VAT
If the buyer wishes to export the Artwork(s) from the United Kingdom, it is the buyer's responsibility to obtain the required export licence. The fact that an export licence is being sought, or that the export licence is not granted, does not affect the buyer's obligation to pay for the Artwork(s).
Where the buyer expresses the intention to export the Artwork(s) from the United Kingdom and accordingly, the Artwork is zero-rated or not subject to Valued Added Tax (VAT), the buyer shall (i) export the Artwork(s) within the time limits and in accordance with the formalities laid down by HM Customs and Excise (HMRC), (ii) complete such documentation as HMRC may require and (iii) provide the Seller with the relevant documents constituting proof of export within seven (7) days from the date of shipment of the Artwork(s). The buyer shall indemnify the Seller in full against any claims made against it by HMRC for VAT or any other expenses (including legal fees) or penalties arising from the buyer's failure to observe the relevant formalities and time limits.
JOINT AND SEVERAL LIABILITY
If the person named on the invoice acts as agent or fiduciary for the buyer of the Artwork(s) (whether the buyer is named or un-named), that person accepts joint and several liability with the buyer under these Conditions of Sale.
LIABILITY OF SELLER
The Seller shall exercise reasonable care when describing the Artwork(s). The Seller makes no representation or warranty, orally or in writing, express or implied (other than those which cannot be excluded by law) with respect to any of the characteristics of the Artwork(s), including (without limitation): age, authenticity, attribution, provenance, origin, condition, importance, size, quality, quantity, rarity, value, historical significance, medium, material, period, culture or source, which are statements of opinion only and not representations of fact. The sale of the Artwork(s) shall not be treated as a sale by description and statements made orally or in writing by the Seller as to the characteristics of the Artwork(s) shall not be treated as terms of the sale. If the Seller makes factual statements in relation to the Artwork(s), the Seller accepts liability to the buyer for its own negligent and substantive errors and omissions in factual statements. The Seller does not accept liability for its reliance on (i) information provided by such experts as the Seller may consult, (ii) information provided by the principal if the Seller sells as agent for such principal, (iii) technical knowledge at the time of describing the Artwork(s) and (iv) the generally accepted opinion of experts available at that time. The buyer acknowledges that the opinion of experts may vary over time and there is no guarantee that a consensus of opinion on the Artwork(s) (including but not limited to attribution to a particular artist, school, type or period) at the time of the sale will not change.
The Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the sale of the Artwork(s), shall be limited to the price of the Artwork excluding any delivery costs and VAT. The Seller shall not be liable to the buyer for any loss of profits, loss of business, loss of anticipated savings or for any special, indirect, incidental, or consequential loss, costs, damages, charges or expenses to the fullest extent permitted by law. No provision in these Conditions of Sale shall be deemed to exclude or limit the Seller's liability to the buyer in respect of any fraud or fraudulent misrepresentation, or in respect of death or personal injury caused by its negligent acts or omissions.
The buyer agrees that the Seller may pay a commission to any party who has assisted the Seller with the sale of the Artwork(s) or introduced the buyer. The buyer agrees to be bound by these Conditions of Sale to the exclusion of his own terms and conditions (if any). No amendment, modification or waiver of any of the terms and conditions herein may be made, except in writing signed by the buyer and the Seller. No failure to exercise nor any delay in exercising any right, power, privilege or remedy under these Conditions of Sale shall impair or operate as a waiver thereof in whole or in part. Should any provision of these Conditions of Sale be held void, invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect. These Conditions of Sale are not assignable without the Seller's prior written consent, but they are binding on the buyer's successors, assigns and representatives. No term of these Conditions of Sale shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by anyone other than the buyer. These Conditions of Sale set out the entire agreement in respect of the sale of the Artwork(s) and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements between the Seller and the buyer relating to the same.
APPLICABLE LAW AND JURISDICTION
These Conditions of Sale are governed by English Law, and any dispute arising from or in connection to these Conditions of Sale shall be subject to the exclusive jurisdiction of the courts of England for the benefit of the Seller. The preceding sentence shall not limit the Seller's right to proceed against the buyer in the courts of any other jurisdiction, and the buyer hereby waives any objection to the jurisdiction of such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.