MyArtBroker SERVICE TERMS
1. DEFINITIONS & INTERPRETATION
The definitions to be read with these Terms are set out in full at Clause 21.
2. YOUR AGREEMENT WITH MAB
2.1 By using the MAB Platform to access the MAB Services, You expressly agree to be bound by these Terms and all applicable Legislation and Codes. These Terms form a legally binding agreement between You and MAB and applies to all PI Members.
2.2 You should read these Terms carefully and ensure that You understand their effect before proceeding to use the MAB Services. If You disagree with any part of these Terms, do not use the MAB Platform for the purpose of accessing the MAB Services. If You violate these Terms, MAB may terminate Your use of the MAB Platform, bar You from future use of the MAB Platform and/or take appropriate legal action against You.
2.3 We reserve the right to modify these Terms at any time without notice. Any changes We may make to these Terms in the future will be posted on this page and, where appropriate, notified to You by e-mail or when You next use the MAB Platform to access the MAB Services, the new Terms may be displayed on-screen and You may be required to read and accept them to continue. You agree that MAB will treat Your use of the Site to access the MAB Services as acceptance of the Terms herein including Your continued use subsequent to any changes.
2.4 As a PI Member, You can be a PI Buyer Member or a PI Seller Member:
A. Wearing Your PI Seller Member hat and in consideration of the payment of the relevant Fees as applicable, You can:
(a) browse the MAB Platform to see if the Artist of the Art Work You wish to Sell via the MAB Platform is a MAB-Supported Artist;
(b) complete the Sell Art Form by filling in the Art Work Description;
(c) receive an Art Broker Report on the Art Work You wish to sell;
(d) have Your Art Work listed on the MAB Platform for potential MAB Buyer Members (either FAPs or PIs) to browse, source and make an enquiry about provided that the Art Work is MAB-Approved for listing;
(e) benefit from subsidised Delivery Fees at Your option by electing to use the MAB-Approved-Shipper or You can choose to undertake the Delivery-By-Hand or the DIY-Delivery option;
(f) Sell the Art Work to a PI Buyer Member or FAP Buyer Member via an Art Broker in accordance with these Terms and with the AB Transaction Terms and receive the Net Proceeds from the Art Broker;
(g) avail of the MAB Member Account Features to monitor and manage Your buying activities via Your MAB Login.
B. Wearing Your PI Buyer Member hat and in consideration of the payment of the relevant Fees as applicable, You can:
(a) browse the MAB Platform to source the Art Work You wish to buy;
(b) ask a question/ make an enquiry, complete a Pre-Sales Agreement or make an Offer;
(c) benefit from being assigned an Art Broker who will conduct the Transaction between You and the PI Seller Member where applicable. AB is an expert in the relevant Artist pertaining to the Art Work You may wish to purchase and such AB will undertake an Art Work Vetting Process;
(d) benefit from subsidised Delivery Fees at Your option by electing to use the MAB-Approved-Shipper or You can choose to undertake the Delivery-By-Hand or the DIY-Delivery option (where there is no AB involved in the Transaction);
(e) buy the Art Work direct from an FAP Seller Member in accordance with these Terms and the FAP Transaction Terms and pay the Art Work Price to the FAP Seller Member direct;
(f) buy the Art Work from a PI Seller Member via an Art Broker in accordance with these Terms and with the AB Transaction Terms and pay the Art Work Price to the Art Broker;
(g) avail of the MAB Member Account Features to monitor and manage Your buying activities via Your MAB Login;
(h) change Your mind and return the Art Work at Your cost to the FAP Seller Member by written notice using one of the Delivery Options provided it is within the cancellation period stipulated in the Regulations i.e. a FAP Seller Member has a strict legal obligation under the Regulations to provide a PI Buyer with certain Consumer Rights pursuant to the relevant FAP Transactions Terms. Your Consumer Rights enforceable as against a FAP Seller Member shall be found in the relevant FAP Transaction Terms and shall include but shall not be limited to the following; and,
(i) return an Art Work to a PI Seller Member and obtain a refund (where applicable) pursuant to the AB Transaction Terms.
3. APPLICABLE TRANSACTION TERMS
3.1 These Terms apply to the activities of all MAB Members in respect of their use of the MAB Platform. In addition, when using the MAB Platform:
(a) where a PI Buyer Member buys Art Work from a FAP Seller Member as a result of an Introduction made via the MAB Platform, the FAP Transaction Terms shall apply to the Transaction and the Completed Transaction;
(b) where a PI Seller Member sells Art Work to a FAP Buyer Member via an AB as a result of an Introduction made via the MAB Platform, the AB Transaction Terms shall apply to the Transaction and the Completed Transaction;
(c) where a PI Member sells Art Work to a PI Buyer Member, or buys Art Work from a PI Seller Member, via an AB, the relevant AB Transaction Terms shall apply to the Transaction and the Completed Transaction.
(the ‘Transaction Terms’)
3.2 In all instances, if the Transaction Terms fail to provide for anything, the general law shall apply as default. MAB shall not be responsible for any acts or omissions of any FAP Member or an AB and consequently, as a FAP Member, You hereby release, acquit and forever discharge MAB (and our agents and employees) from all Claims and Losses (actual and consequential and direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Introduction, any Art Work, any failure on the part of a FAP Seller Member to comply with the Regulations and any other relevant Legislation and any Transaction or Completed Transaction.
3.3 A binding Contract shall come into existence between the relevant:
(a) FAP Seller Member and PI Buyer Member who are party to a Completed Transaction under the relevant FAP Transaction Terms; and,
(b) AB and MAB Seller Member & AB and MAB Buyer Member where the AB Services of an AB are utilised under the relevant AB Transaction Terms.
4. BECOMING A PI MEMBER
4.1 To become a PI Member, entitling You to make use of the MAB Services and to be party to a Transaction via the MAB Platform, You agree to comply in full with the Terms at all times.
4.2 You must submit Your name, email, phone number and password via an online registration form to apply for membership to the MAB Platform (‘Membership’). You warrant and represent that the Data that You provide is true, accurate and complete. Your Membership application will undergo a brief approvals process to become ‘Approved’ and it is in MAB’s absolute discretion to decide if You qualify (or continue to qualify) to be Approved.
4.3 In order to provide You with maximum protection, during registration, You will be asked to input Your email address and registered password which shall represent Your MAB Login which You shall use to access Your MAB Member Account and the associated MAB Member Account Features.
4.4 You will keep Your Login relevant to the MAB Platform and the MAB Services confidential and not reveal it to anyone. You are responsible for all activities that are carried out under Your MAB Login. We do not have the means to check identities and will not be liable where Your MAB Login is unlawfully used by another. You agree to notify MAB immediately by email at [email protected] of any unauthorised use of Your MAB Login or MAB Member Account of which You become aware (with “IMPORTANT” in the subject line). You will not create additional accounts for the purpose of abusing the functionality of the MAB Platform or other registered MAB Members or for any other reason in breach of these Terms.
4.5 You can cancel Your Membership at any time. Please contact us by email at [email protected] with “URGENT – CANCELLATION REQUEST” in the subject line to have your MAB Member Account closed.
4.6 Although MAB cannot monitor the conduct of MAB Members off the MAB Platform, it is a violation to use any information obtained from this MAB Platform in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit or Sell to any MAB Member without their prior explicit consent.
4.7 You may not transfer ownership or Sell Your MAB Member Account to a third party.
4.8 MAB Members who do not comply with these Terms may be subject to review, which can result in suspension of MAB Member Account privileges and/or termination. This includes all accounts by virtue of association. MAB reserves the right to suspend or terminate the use of the MAB Platform for a MAB Member. Suspended or terminated MAB Members remain obligated to pay any Fees to other MAB Members or an Art Broker where applicable in respect of a Completed Transaction in accordance with the relevant Transaction Terms.
4.9 MAB reserves the right to delete Your MAB Member Account after a twelve (12) month long continuous period of inactivity which shall include not logging in.
4.10 Should We need to contact You regarding Your MAB Member Account, You are required to respond to us within seventy-two (72) hours failing which, a pending Transaction may be abandoned, revoked or terminated.
4.11 A FAP Member may be a business that involves multiple people but a PI Member must be a non-trade individual member only.
5. ART WORK DECSCRIPTION, LISTING PROCESS & PI SELLER MEMBER EXCLUSIVITY
5.1 All Approved PI Members may apply to have an Art Work listed on the MAB Platform as a Listing by submitting a Sell Art Form. There are no fees payable for applying for a Listing or for securing it as MAB-Approved.
5.2 All Listings shall be subject to PI Seller Member MAB Exclusivity which shall mean that while the Art Work constitutes a live Listing on the MAB Platform, PI Seller shall not list the Art Work for Sale on any other online platform and shall use MAB as its sole and exclusive Introducer and the MAB Platform as its sole marketing venue in respect of the Art Work except where MAB:
(a) has given prior written approval; or
(b) is unable to provide the MAB Services.
5.3 Upon receipt of the Sell Art Form, the AB shall produce an Art Broker Report.
5.4 As part of the Listing process, and notwithstanding the AB’s Art Broker Report, it is the PI Seller Member’s responsibility in respect of each Art Work, to provide an accurate Art Work Description including information and pricing. There is an implied commitment to purchase when a MAB Buyer Member completes a Pre-Sales Agreement.
5.5 Market prices for Art Works can be volatile and can change on a regular basis to be competitive. The market value price of an Art Work is established by the MAB Seller Member who may be advised by way of the Art Broker Report. It is essential that a PI Seller Member maintains up-to-date and accurate pricing at all times on the MAB Platform which is its sole responsibility. A PI Seller Member must take full responsibility for any pricing errors and all pricing must adhere to all applicable Legislation and Codes.
5.6 A PI Seller Member can either accept or reject the Art Broker Report. If it is accepted, You authorise MAB to have Your Listing go live on the MAB Platform. If rejected, MAB may seek, but will not be obliged to seek, a compromise on behalf of the parties involved.
5.7 All Listings on the MAB Platform must be for a tangible Art Work and each Art Work must be available for Sale and purchase. You may not create a Listing for an Art Work that is not available for Sale at the relevant time. A Listing may not be created solely as an advertisement.
5.8 Art Works must not be posted as available for rental or lease.
5.9 A Listing must not be conditional upon the purchase of another Art Work.
5.10 Save for where there is a PI Buyer Member purchasing from a FAP Seller Member, an Art Broker will be assigned to You and You hereby irrevocably appoint that Art Broker to be Your attorney in Your name and on Your behalf to conduct the Sale and purchase of the Art Work concerned and to agree to any relevant Transaction Terms, execute any documents, use Your name and do all things which are necessary or desirable for You to Sell or buy the Art Work which is the subject matter of the proposed Transaction. This power of attorney is irrevocable as long as any of the parties’ respective obligations under these Terms remain undischarged.
6.1 MAB Platform Fees: MAB shall be entitled to charge a FAP Seller Member, MAB Platform Fees as set out in the table below in respect of a Completed Transaction between with a PI Buyer Member as a result of an Introduction made via the MAB Platform.
6.1.5 Minimum Platform / AB Fees: The minimum value of Artwork listed on MAB is £2000, for any Artworks listed below this value, both Platform and AB Fees will be calculated at the minimum value rather than the actual value.
6.2 AB Fees: AB shall be entitled to charge MAB Members the AB Fees as set out in the table below in respect of a Completed Transaction as a result of an Introduction made via the MAB Platform. Such AB Fees shall be paid to the relevant Art Broker who holds the Gross Proceeds in Escrow.
|MAB Seller Member||MAB Buyer Member||Broker Fees Payable by MAB Seller Member to Broker||Broker Fees Payable by MAB Buyer Member to Broker||MAB Platform Fees Payable by FAP Seller to MAB||Gross Proceeds payable by? to?||Net Proceeds payable by? to?||(Delivery by MAB Seller Member to Broker) Delivery Fees payable by?||(Delivery by Broker to MAB Buyer Member) Delivery Fees payable by?|
|PI||PI||12.5%||12.5%||N/A||PI Buyer to Broker||PI Seller Member||PI Seller Member||PI Buyer Member|
|FAP||PI||N/A||N/A||12.5%||PI Buyer to FAP Seller||N/A||N/A MAB Buyer pays for delivery||N/A MAB Buyer pays for delivery|
|PI||FAP||12.5%||12.5%||N/A||FAP Buyer to Broker||Broker to PI Seller||PI Seller Member||FAP Buyer Member|
6.3 Delivery Fees: Where there is an AB involved, the MAB Seller Member will be responsible for any Delivery Fees incurred in getting the Art Work to the AB (or they can deliver it themselves). Thereafter the MAB Buyer Member shall be responsible for the payment of all Delivery Fees incurred for the Art Work to be sent by the AB to the MAB Buyer Member (or the latter can arrange to collect it themselves). Where there is no AB involved, the MAB Buyer Member is solely responsible for any Delivery Fees incurred.
6.4 Delivery Fees incurred by a MAB Seller Member shall constitute an Applicable Deduction and shall be deducted prior to the MAB Seller Member receiving the Net Proceeds. For the avoidance of doubt, MAB are not responsible for shipping arrangements or for the payment of any associated fees which shall be governed by the FAP Transaction Terms and the AB Transaction Terms as applicable.
6.5 Where the Art Broker on behalf of the MAB Buyer Member in a Transaction pays the Net Proceeds to the MAB Seller Member, such transfer shall take place fourteen (14) calendar days following the day the MAB Buyer Member receives the Art Work.The Gross Proceeds are held by an AB in an Escrow Account for 14 calendar days. Following successful completion of the Transaction, the Net Proceeds are released accordingly (‘Release’). The Release shall take on average three to four (3 – 4) Business Days to process although please be aware that it may take longer subject to banking processing timescales for which neither MAB or the MAB Members or ABs are responsible.
6.6 A PI Buyer Member can change their mind and return the Art Work at their own cost to the FAP Seller Member by written notice using one of the Delivery Options provided it is within the cancellation period stipulated in the Regulations. A FAP Seller Member has a strict legal obligation under the Regulations to provide a PI Buyer with certain Consumer Rights and to make these Consumer Rights known to the PI Buyer in advance of a Completed Transaction pursuant to the relevant FAP Transactions Terms.
6.7 All payments of Gross Proceeds made in respect of Transactions between MAB Members must be processed transparently and shall be made known to MAB. Failing to do so shall constitute a material breach of these Terms and may result in Your MAB Member Account being suspended or terminated at MAB’s discretion for reasons of intended circumvention referred to at Clause 13. The MAB Seller Member will be liable for all Losses incurred by MAB as a result including all reasonable legal expenses. MAB Members must report attempts by other MAB Members who are party to a Transaction who unlawfully circumvent (or attempt to) the payment of any AB Fees (or MAB Platform Fees) due and payable as a result of an Introduction made.
6.8 If either party fails to make any payment due under the Terms by the due date for payment, the other shall be entitled to charge interest on the overdue sum for the period from and including the due date of payment up to the actual date of payment (after as well as before judgment) at the rate of 2% (two per cent) above the base rate per annum from time to time of the Bank of England.
7. THE TRANSACTION
7.1 Where the MAB Seller Member and the MAB Buyer Member agree that a Sale shall ensue, the MAB Buyer Member must complete a Pre-Sales Agreement and submit this to the relevant FAP Seller Member or AB as the case may be.
7.2 Upon receipt of the Pre-Sales Agreement which shall be regarded as an Offer, the FAP Seller Member can accept or reject the Offer. If accepting the Offer, the FAP Seller Member or AB will invoice the FAP Buyer Member in accordance with the applicable Transaction Terms. If rejecting the Offer, further negotiations may ensue at Your option whether direct with the MAB Buyer Member off the MAB Platform or via the assigned Art Broker.
7.3 All communications that take place between MAB Members and/ or Art Brokers take place external to the MAB Platform.
7.4 MAB Seller Members shall deliver the Art Work direct to the AB (at the MAB Seller Member’s expense) who will inspect the Art Work and deliver it onwards to the MAB Buyer Member (at the MAB Buyer Member’s expense) depending on what Delivery Option has been elected by the MAB Buyer Member as follows:
i. MAB-Approved-Shipper (wherein the MAB Buyer Member can avail of subsidised Delivery Fees);
ii. Delivery-By-Hand; or
iii. DIY-Delivery (at MAB Buyer Member’s own risk).
7.5 The exception to Clause 7.4 is where there is no AB involved in the Transaction in which case the MAB Seller Member shall send the Art Work direct to the MAB Buyer Member at the MAB Buyer Member’s sole expense depending on what Delivery Option has been elected by the MAB Buyer Member pursuant to Clause 7.4.
7.6 A FAP Seller Member (or an AB as the case may be) will be solely responsible for incorporating provisions in to their FAP Transaction Terms and AB Transaction Terms respectively to govern where the risk and liability shall lie in respect of the secure delivery of the Art Work to the MAB Buyer Member and where additional terms may apply e.g. courier terms, such shall be made readily available to the MAB Buyer Member who is responsible for paying the Delivery Fees.
9. INTELLECTUAL PROPERTY & ARTIST RESALE RIGHT
9.2 Artists Resale Right (‘ARR’) legally entitles UK Artists to receive a small percentage of the Art Work Price whenever a UK art market professional (i.e. an Art Broker or FAP (as defined herein)) is involved in the resale (second and each subsequent sale) of an Art Work for €1, 000.00 or more. Its detailed provisions reside in the Artist Resale Right Regulations 2006. The ARR endures for the Artist’s lifetime and for seventy (70) years after death (the Artist’s estate being entitled thereafter as from 2012).
MAB Seller Member Intermediary MAB Buyer Member Primary Responsibility for ARR Secondary Responsibility for ARR*
PI Art Broker PI Art Broker PI Seller
PI Art Broker FAP Art Broker PI Seller
FAP None PI FAP Seller FAP Seller
*Secondary would be the party who would be considered liable for ARR if the primary could not be located/ determined.
10. DATA PROTECTION & PRIVACY
11. WARRANTIES AND INDEMNITIES
11.1 MAB Members acknowledge that the MAB Services are limited to providing an Introducer service in an exclusive but open marketplace through which MAB Members can carry out and conclude a Transaction in a dedicated online art marketing environment.
11.2 MAB is not itself directly involved in a Transaction that may take place between MAB Members and/ or an Art Broker. Consequently, MAB cannot transfer legal ownership of an Art Work and cannot make any guarantees to a MAB Member who sells or makes a purchase at their own risk. For the avoidance of doubt, MAB:
(a) has no control over the quality, morality, authenticity, provenance, safety or legality of an Art Work listed on the MAB Platform;
(b) does not take ownership of any Art Works listed by a MAB Seller Member;
(c) is not legally privy to any Contract that may arise when there is a Completed Transaction;
(d) does not guarantee that any minimum or fixed number of Listings of Art Works will result in a Sale;
(e) does not guarantee that the information submitted by a MAB Member is valid and accurate including the Art Work Description;
(f) does not guarantee that the quality of any Art Works provided by MAB Seller Members will be of a high standard or not sub-standard;
(g) does not guarantee that the quality of any AB Services including the contents of any Art Broker Report or results of an Art Work Vetting Process will be valid and accurate and be of any particular standard or not sub-standard;
(h) is not responsible for undertaking any Delivery Options and is not responsible for any associated fees (which shall be the sole responsible of the MAB Seller Member and/ or the AB); and,
(i) does not guarantee that interruptions of service on the MAB Platform will not occur at any time.
You further acknowledge and agree that MAB may have many Art Works for sale on the MAB Platform concurrently and MAB has no responsibility whatsoever for the marketing or promotion of any Art Work or the success of the Sale of any Art Work, all of which are the MAB Seller Member’s sole responsibility and obligation.
11.3 MAB Members warrant, represent and undertake to MAB that:
(a) You are at least eighteen (18) years of age at the time of registration;
(b) You have and shall continue to have all necessary licences, rights, consents, and permissions which are required to enable MAB to use or display Your user-generated-content (‘UGC’) in the manner contemplated by these Terms;
(c) You will comply with all applicable laws including Legislation and Codes;
(d) You agree to cooperate fully with MAB and any MAB Member or Art Broker in resolving any Dispute;
(e) all information provided to MAB or to another MAB Member in respect of itself (when applying to be an Approved MAB Member or at any time thereafter) and in respect of any Art Work or Transaction is true and accurate in all respects;
(f) You are solely responsible for any breach of Your obligations under these Terms due to Your act, omission, default or Your failure to comply with any of Your obligations under the Terms and for the consequences of any such breach or failure;
(g) You are solely responsible for ARR payment obligations where applicable in accordance with Clause 9.2; and,
(h) You will keep Your MAB Login details secure and confidential.
11.4 The PI Seller Member hereby further warrants, represents and undertakes to MAB that:
(a) all Art Works are 100% assured and available for immediate Sale at the Art Work Price stated in the Listing;
(b) You will not be fraudulent or Sell or attempt to Sell illegal, counterfeit or stolen Art Works;
(c) all Art Works are the property of PI Seller Member or PI Seller Member is legally authorised to Sell the Art Work (by law, contract or otherwise) and no third party rights (including any Intellectual Property Rights) will be infringed by PI Seller Member in listing the Art Work for Sale via the MAB Platform;
(d) in offering Art Works for Sale via the MAB Platform, You are complying with all applicable Legislation and Codes.
11.5 Subject to Clause 12.1, You release, acquit and forever discharge MAB from any and all Losses (actual and consequential, direct or indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Dispute arising from the Sale and purchase of an Art Work which may ensue as a result of an Introduction made via the use of the MAB Platform including any misinformation, mis-described Art Work, non-delivery of Art Work, faulty or damaged Art Works, or inaccurate/ non-genuine advertisement or pricing, or any alleged malpractice arising out of a MAB Member’s use of the MAB Platform to access the MAB Services. As the context permits, We make no warranty, and hereby expressly disclaim any liability to You. You shall indemnify and hold harmless MAB on demand, and shall keep MAB fully and effectively indemnified against any and all Losses incurred by or Claims asserted against MAB, arising out of or in connection with:
(a) any breach of these Terms or breach of warranty by You or Your acts or omissions (or those of Your employees, sub-contractors or agents) including Your use of or inability to use the MAB Services or any MAB Platform functionality at any point in time in accordance with the Terms (other than and to the extent that any losses arise directly from breach of these Terms by MAB or by MAB’s negligence);
(b) the Art Works infringing a third party’s rights;
(c) the AB Services including any Art Broker Report and the AB Transaction Terms;
(d) any FAP Transaction Terms;
(e) any advertisement, marketing or promotion including the Listing of Art Works and Art Work Descriptions on the MAB Platform (other than any material produced by MAB) and any reliance placed on it;
(f) the information in any pre-existing MAB-Supported Artist Listings Categories on the MAB Platform (as a PI Seller Member) being inaccurate or incomplete;
(g) MAB Platform unavailablity at any time for any period;
(h) payment of the ARR obligations where applicable;
(i) any linked third party MAB Platform or resources, statements, information, content, products or services that are published on, or may be accessible from, any linked third party website including any third party customer/ client facing policies/ contractual terms or as a result of any reliance placed by You on the completeness, accuracy or existence of the same;
(j) due to any changes which MAB may make to the MAB Services, or for any permanent or temporary cessation in the provision of the MAB Services (or any features within the MAB Services);
(k) the deletion of, corruption of, or failure to store, any UGC and other communications data maintained or transmitted by or through Your use of the MAB Services;
(l) any errors or omissions on the MAB Platform or in relation to any reliance placed by You on any content on the MAB Platform or its accuracy thereto; and,
(m) any unauthorised access or loss of Data that is beyond our control.
12.1 Nothing in this Clause 12 shall exclude or restrict MAB’s liability for (i) fraudulent misrepresentations, (ii) any liability where the law does not permit such exclusion of liability, and (iii) death or personal injury arising from negligence.
12.2 MAB shall not be in breach of any of its obligations under these Terms which arise or occur due to Your act, omission or default or that of an Art Broker or Your failure to comply with any of their obligations herein.
12.3 Subject to Clause 12.1, MAB shall not be liable to You for any special, indirect or consequential loss or damage or any loss (whether direct or indirect) of profit, anticipated profits, business, data, opportunity, revenue, goodwill or reputation.
12.4 Subject to Clause 12.1, MAB’s total maximum liability arising under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall not exceed, (including in respect of any Transaction that has taken place as a result of an Introduction via the MAB Platform), an amount equivalent to the MAB Platform Fees paid in respect of the Completed Transaction(s) to which the Claim relates. or where there is no Completed Transaction, the sum of fifty (50) pounds sterling.
12.5 The limitations on MAB’s liability to You in this Clause 12 shall apply whether or not MAB has been advised of, or should have been aware of, the possibility of any such losses arising.
12.6 Except as expressly set out herein, MAB gives no warranties and excludes all other express or implied terms, conditions and warranties including also any implied warranties of merchantability and fitness for a particular purpose to the fullest extent permitted by law.
12.7 No action arising out of or in connection with these Terms may be brought by You more than twelve (12) months after the date of the event from which the Claim (or series of related Claims) arose.
13. ENQUIRIES & DISPUTES
13.1 You recognise that in order to facilitate an efficient, online art marketing introducer portal, certain enquiries need to be responded to and resolved rapidly. You agree to respond to all queries made to You within seventy-two (72) hours via email or phone. Failure to do so may result in Your automatic withdrawal from the MAB Platform resulting in the termination of any and all MAB Member privileges without notice.
13.2 MAB encourages all MAB Members to resolve their own Disputes. MAB cannot mediate Disputes between MAB Members. Where there is a Dispute raised between MAB Members and/ or an Art Broker, MAB encourages the parties to communicate with each other directly, fairly and in a timely and honest manner. MAB offers no advice, recommendations, endorsements or legal representation under any circumstances and will not make judgements or claims.
13.3 A PI Buyer Member who has performed a Completed Transaction may have a limited time frame in which to return the Art Work and claim a refund in accordance with the relevant Transaction Terms and the Regulations.
14.1 The MAB Member hereby legally and irrevocably covenants to MAB that it will not circumvent or attempt (or cause) to circumvent, avoid, by-pass or obviate either directly or indirectly through any persons(s), firm, business or company by entering into business transactions or ventures with third parties in a manner that results in the loss of actual or potential business opportunity or Fees or revenue for MAB or otherwise results in any form of financial return or considerations to or for the benefit of the other party or any other company or third party excluding or causing a detriment to MAB.
14.2 In the event of circumvention of these Terms, whether directly or indirectly, the circumvented party shall be entitled to a legal monetary penalty equal to maximum considerations or Fees as reasonably determined by a court of competent jurisdiction plus any or all Losses incurred to recover the lost revenue. The obligations contained in this Clause 14 shall continue without limit of time notwithstanding termination or expiry of MAB Membership. You may not engage in any activity to avoid the payment of AB Fees (or MAB Platform Fees).
15. ENTIRE AGREEMENT/ SEVERABILITY
These Terms shall be personal to You and You may not assign or transfer Your MAB Membership and Account to a third party. MAB reserves the right to assign or transfer all or any of its rights and obligations under these Terms to any companies in the same group as MAB or other third party. In the event of assignment or transfer, notification will either be given to You by e-mail or posted on the MAB Platform.
17. NO WAIVER
Failure by either MAB or You to exercise or enforce any right conferred shall not be deemed to be a waiver of any such right nor operate so as to bar that exercise or enforcement thereof or of any other right on any later occasion. Any notice alleging a breach of this Agreement shall be in writing addressed to the relevant Party’s Legal Department and shall be sent by overnight courier or delivered in person to the Party’s address set forth in this Agreement. Any other notice required to be provided under this Agreement may be sent by e-mail or by regular first class post or mail to the representative set out in the Deal Terms.
18. THIRD PARTY RIGHTS
You may enforce these Terms in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999 (the “Act”). Except as provided above, these Terms do not create any right enforceable by any person who is not a party to it under the Act, but does not affect any right or remedy that a third party has which exists or is available apart from that Act.
Any notice alleging a breach of these Terms shall be in writing addressed to the relevant party’s Legal Department and shall be sent by overnight courier or delivered in person to the party’s address set forth in these Terms. Any other notice required to be provided under these Terms may be sent by e-mail or by regular first class post.
20. LAW AND JURISDICTION
As between You and MAB, MAB will try and solve any disagreements quickly and efficiently. If You are not happy with the way MAB deals with any disagreement and You want to take court proceedings, You must do this within England. Relevant English law will apply to the Agreement and the relevant courts of England will have exclusive jurisdiction in relation to the Agreement.
21. DEFINITIONS & INTERPRETATION
In these Terms (except where the context otherwise requires) the following words shall have the following meanings:
Art Broker (or AB): refers to the professional art dealer who is expert in artist-specific Art Works and who is assigned to a Transaction to provide the AB Services to the parties to the Transaction in accordance with the AB Transaction Terms.
AB Fees: refer to the fees paid by a MAB Member to an Art Broker.
AB Services: refers to the services to be provided by an assigned Art broker.
AB Transaction Terms: refers to contractual terms governing the Transaction with an AB.
Approved: means the status whereby a MAB Member registering on the MAB Platform is approved by MAB.
Applicable Deductions: refers to one or more of the following as applicable:
i. AB Fees; and/ or,
ii. Delivery Fees where applicable.
Artist: refers to the artist of the Art Work.
Artists Resale Right (or ARR): as referred to in Clause 9.2.
Art Broker Report: refers to the report produced by an AB for the benefit of a MAB Seller Member which contains pricing suggestions based on the AB’s experience.
Art Work: refers to a work of art that constitutes a Listing.
Art Work Description: refers to the description and details that a MAB Seller Member attaches to a Listing.
Art Work Price: means the price of the Art Work inclusive of any VAT.
Art Work Vetting Process: refers to the process implemented for the benefit of a MAB Buyer Member whereby, upon receipt of the Art Work sent by a MAB Seller Member, the AB will ascertain the provenance and legitimacy of the Art Work submitted by the MAB Seller Member for Listing based on the information provided.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in the UK.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in the UK.
Claim(s): means all demands, claims and liability (actual and consequential and direct and indirect and whether known and unknown, suspected and unsuspected, disclosed and undisclosed, criminal or civil, in contract, tort or otherwise for all Losses including any other expenses of any nature whatsoever.
Codes: refers to all codes of practice (including for these purposes ancillary guidance notes and advice) published by regulatory authorities or other industry professional bodies, to be construed as to include all references to any amendments, modifications or consolidations constituting the most up-to-date versions thereof.
Confidential Information: all information (whether technical or commercial disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Consumer Rights: refers to those rights enshrined in the Regulations and alluded to at Clause 2B(g)which an FAP Seller Member must make express provision for in their FAP Transaction Terms.
Completed Transaction: refers to a Transaction that has been duly completed.
Contract: means the legally binding and enforceable agreement that may be formed between a MAB Buyer Members and/ or a MAB Seller Member and/ or an Art Broker when there is a Completed Transaction.
Data: refers to both Personal Data and Financial Data.
Data Protection Law: means all applicable data protection laws, regulations, legislative and regulatory requirements and codes of practice.
Delivery-By-Hand: refers to one of the Delivery Options that a MAB Member can elect which involves arranging to undertake delivery by hand at Your own risk.
Delivery Fees: refers to the fees payable by the relevant party for delivery of an Art Work where applicable.
Delivery Options: refers to DIY-Delivery, Delivery-By-Hand and delivery by way of a MAB-Approved-Shipper.
Dispute: means any dissatisfaction expressed by or against a MAB Member or an Art Broker in connection with a Transaction or by a MAB Member against MAB in connection with the provision of the MAB Services.
DIY-Delivery: refers to one of the Delivery Options that a MAB Member can elect which involves arranging and paying for Your own delivery at Your own risk.
Escrow Account: refers to an account where all applicable Fees are deposited pending delivery and acceptance whereupon the same (save for the retained Applicable Deductions) shall be released to the PI Seller Member.
FAP: means a fine art professional who is a trade seller or buyer on the MAB Platform.
FAP Buyer Member: a FAP Member acting in the capacity of a buyer.
FAP Member: a trading fine art professional who has been Approved and is registered as a MAB Member on the MAB Platform and who is buying/ selling or intending to buy/ Sell one or more Art Works in one or more Listings.
FAP Seller Member: a FAP Member acting in the capacity of a seller.
FAP Transaction Terms: refers to the FAP Seller Member’s contractual terms governing the Transaction with a PI Buyer Member.
Fees: includes AB Fees, MAB Platform Fees and the Delivery Fees where applicable.
Fine Art Professional (FAP): can be a trade seller or a buyer on the MAB Platform.
Gross Proceeds: includes:
– the Art Work Price; and,
– the Delivery Fees (if applicable).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Introduction: refers to the provision of a MAB Member contact details to another MAB Member or to an Art Broker pursuant to a possible Transaction. Introduce, Introduces and Introduced shall be interpreted accordingly.
Legislation: includes all applicable laws, Acts of Parliament and Treaties as well as Data Protection Law and all orders, regulations, directives, conventions and subordinate legislation made pursuant to such an Act or Treaty or otherwise having the force of law in relation to the advertising and the sale and supply of goods including that relating to online activity (as well as technologically neutral legislation), to be construed as including references to any amendment, modification, consolidation or re-enactment for the time being in force.
Listing: the listing of the Art Work on the MAB Platform.
Losses: means any claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses.
MAB: refers to MyArtBroker (London) Limited which provides the MAB Platform to facilitate the buying and selling of art between FAPs and PIs using the MAB Platform as a marketing and advertising platform.
MAB-Approved: refers to the status of the Art Work that has been approved for a Listing by MAB.
MAB-Approved-Shipper: refers to the shipper ordinarily used by MAB which a MAB Member can use.
MAB Buyer Member: refers to either a FAP Buyer Member or a PI Buyer Member.
MAB Platform Fees: shall be invoiced by MAB to a FAP Seller Member who sells to a PI Buyer Member in partial consideration of providing the MAB Services.
MAB Login: the username and unique password a MAB Member applies to their Account upon registration.
MAB Member: refers to registered and Approved PI Member or a FAP Member.
MAB Member Account: means the secure account created by an Approved MAB Member upon registration and from where the same can access the MAB Services via their MAB Login.
MAB Member Account Features: means the functionality provided that allows, inter alia, a MAB Member to have access to their MAB Member Account to follow favourite MAB-Supported Artists, save Art Works to view later, edit Art Work Descriptions and track Offers via their MAB Login.
MAB Member Mark(s): a MAB Member’s logos and trade marks (whether registered or unregistered).
MAB Network: refers to MAB’s network of trusted Fine Art Professionals and Art Brokers.
MAB Platform: means the website owned and operated by MAB including www.myartbroker.co.uk via which the MAB Services can be accessed.
MAB Seller Member: refers to either a FAP Seller Member or a PI Seller Member.
MAB Services: as described in the introduction.
MAB-Supported Artist: refers to the status of whether an Artist is one that the MAB Platform supports.
Membership Confirmation Email: refers to the email sent by MAB to a MAB Member confirming that MAB has approved them for membership.
Net Proceeds: means the Gross Proceeds less the Applicable Deductions.
Offer(s): refers to an offer made by a MAB Buyer Member to a MAB Seller Member in the form of an intimation of a willingness to enter in to a binding Contract to purchase Art Work should the offer be accepted by the MAB Seller Member.
Personal Data: as defined in the Data Protection Law.
PI: means a private individual who is a seller or buyer on the MAB Platform.
PI Buyer Member: a PI Member acting in the capacity of a buyer.
PI Member: a non-trade, private individual who has been Approved and is registered as a MAB Member on the MAB Platform and who is buying/ selling or intending to buy/ Sell one or more Art Works in one or more Listings.
PI Seller Member: a PI Member acting in the capacity of a seller.
Pre-Sales Agreement: refers to the template agreement available for download at [INSERT].
Regulations: refers to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
Sale: refers to the selling or reselling of an Art Work as a result of an Introduction made by MAB. Sell, Resell, Sale and Resale shall be interpreted accordingly.
Sell Art Form: refers to the form that PI Seller Member must fill out upon applying to post a Listing and which shall include the title of the Art Work; the medium of the Art Work; the Artist name; the edition size; the Art Work price; the size of the Art Work; and the Art Work Description.
Transaction Terms: refers to FAP Transaction Terms and/ or the AB Transaction Terms.
Transaction: refers to a prospective Sale and purchase or a Completed Transaction occurring as a result of an Introduction made via the MAB Platform.
UGC: means content provided/ generated by You when accessing and using the MAB Services which are uploaded, embedded or otherwise displayed and/ or stored on the MAB Platform which may include but are not limited to text, articles, images, graphics, photos, stories, audio, video, software, audio-visual combinations, interactive features and other materials in any form, medium or technology now known or hereinafter developed that may be viewed on, accessed through or disseminated publicly on the MAB Platform for use by MAB, MAB Members or visitors to the MAB Platform as permitted herein.
VAT: means value added tax chargeable under English law for the time being and any similar additional tax.