General Terms and Conditions of Sale Jay Art GmbH
§ 1 Scope of Application
- Exclusively the following General Terms and Conditions of Business as amended on the order date shall apply to the business relation between Jay Art GmbH, Poststr. 21, 10178 Berlin, Timo Niemeyer, Managing Director, Local Court of Charlottenburg, Commercial Register No. B 151743B, and you as buyer of objects via the ARTUSIAST online platform operated by Jay Art GmbH.
- We moreover point out that, In case you purchase a work from one of our partners, the purchase contract is not concluded between you and ARTUSIAST, but between you and the contractual partner of ARTUSIAST offering his or her objects via the online platform.
Please read these Terms and Conditions of Sale and the Terms and Conditions of Sale of the relevant seller carefully before issuing any order to ARTUSIAST. By issuing an order to ARTUSIAST, you agree to the application of these Terms and Conditions of Sale to your order and the Terms and Conditions of sale of the relevant seller.
Please also note the additional references to the provisions of data protection law.
- These General Terms and Conditions of Business shall apply irrespective of whether you are a consumer, enterpriser or merchant.
- Decisive shall be the version of these General Terms and Conditions of Business valid upon the closing date of the contract.
- We do not accept any variant terms and conditions of the customer. This shall apply even if we do not expressly object to the inclusion of such terms and conditions.
§ 2 ARTUSIAST's Role
ARTUSIAST enables auction houses, galleries and art dealers to present and sell their objects on its website and thereto acts also but not exclusively as a seller of some individual artworks. The seller of the objects can be found on the webpage displaying the details of the object. When offering the objects of our partners, ARTUSIAST is not the seller but makes the platform available as a service provider and supports the settlement of the sale for the buyer and seller. ARTUSIAST is authorized for this purpose by the offeror (seller) to receive and forward declarations of intent and payments from the buyers.
§ 3 Conclusion of Contract
- With the presentation and advertising of items on our online platform, neither we nor the sellers offering via our platform are making a binding offer to sell a particular item.
- By clicking the button "Order Now" and thus sending an order via the online shop, you issue a legally binding order. You will be bound to the order for five working days from the date the order is placed; any right on your part in accordance with § 8 to revoke your order shall not be prejudiced hereby.
- We shall confirm by e-mail without delay the receipt of your order placed via our online shop, and forward your order to the seller if applicable. The General Terms and Conditions of Business of ARTUSIAST and those of the relevant seller may be downloaded and saved from our website; they will also be enclosed once again in text form with the delivery. Such confirmation e-mail shall not constitute a binding acceptance of the order, unless the acceptance on behalf of the seller is simultaneously declared therein in addition to the confirmation of the receipt.
- A contract shall first come about when the seller accepts your order by acceptance declaration or by delivering the ordered objects. The seller shall then inform you as customer by e-mail about the shipment, providing the necessary shipping information.
- Our terms of business and delivery shall have exclusive validity; conditions set out by the customer, which oppose or deviate from our terms and conditions, shall not be recognised by us.
- Should it turn out, after the conclusion of this agreement, that our delivery claim is at risk due to the supplier’s inability to perform (e.g. due to economic deterioration, actual obstacles to performance, etc.), then we shall be entitled to cancel the agreement.
- If the ordered artwork is not available, there's no entitlement for a delivery claim.
§ 4 Prices and Shipping Costs
- All prices specified on our online platform are gross prices, and include a commission and/or surcharge, the applicable value-added tax, the statutory right to a share in any subsequent sale accruing if applicable pursuant to § 26 of the Copyright Act and the costs incurred for shipping within Germany. If you are a foreign buyer, and the object is to be delivered abroad, additional shipping costs, taxes, etc. may be incurred. Therefore, we ask you to contact ARTUSIAST using the contact form provided so that the total gross price plus the additional cost to be calculated in each specific case can be ascertained.
- If several orders are placed at one time, it cannot be ruled out that these orders will have to be fulfilled as partial deliveries pursuant to § 6(1). Because the gross prices pursuant to §1 already contain the shipping costs within Germany, you will not incur any additional costs as a result. If items are to be shipped abroad, the total costs must be ascertained in each specific case using the provided contact form.
- If you validly revoke your declaration to contract pursuant to § 8, under the conditions stipulated by law you may request a reimbursement for costs previously paid for the shipment to you (regarding other consequences of revocation, cf. § 8(3)).
- Despite our greatest efforts, a small number of objects on our platform might be labeled with the wrong price. We check the prices when we process our order and before we debit the payment. If an object is labeled with the wrong price and the correct price is higher than the price on the website, we will contact you before sending the goods to ask you whether you want to buy the object at the correct price or cancel the order. Should the correct price of a product be lower than the price specified by us, we will charge the lower price and send you the object.
§ 5 Terms and Conditions of Payment and Setoff
- The gross purchase price shall be payable to ARTUSIAST or its partners within four working days after receipt of our order confirmation.
- You can pay the gross purchase price at your choice to the bank account specified in the online shop or by credit card. If you pay by credit card, the credit card will be debited immediately after the order and related data are input.
- You are not authorized to set off claims of the relevant seller, unless your counterclaims are undisputed or have been declared by non-appealable judgment.
- Each delivered object shall remain the property of the seller until full payment to ARTUSIAST or its partners.
- If the customer is in default of payment he shall be liable for all cases of negligence during this period of time. He shall also be liable for any cases of bad luck concerning the goods unless the damage would also have occurred if the payment had been performed in time.
- Should the purchaser delay payment, the company shall be entitled to demand interests of five percent above the base lending rate from the due date and for any legal business, in which no end user is involved, interests of eight percent above the base lending rate.
- The above provisions are without prejudice for the assertion of more extensive loss or damage.
- In the event of default in payment by the customer, the seller shall be entitled, notwithstanding any of the seller's other rights, to rescind the contract without further notice.
§ 6 Terms and Conditions of Delivery and Reservation of Advance Payment
- Unless stipulated otherwise, the delivery shall be made to the delivery address specified by the orderer by a delivery company to be determined by us. If the delivery occurs through a shipping company, the seller or the shipping company commissioned thereby shall contact the orderer regarding the specific delivery date.
- If it is not possible to deliver to the orderer because the delivered goods do not fit through the entry door, building door or stairwell of the orderer or because the orderer is not found at the delivery address specified by the orderer, even though the delivery date was notified to the orderer with reasonable notice, the orderer shall bear the costs of the unsuccessful delivery.
- If you order several objects from a single provider at the same time, these orders shall each represent individual contracts, and the deliveries shall generally occur separately; however, we reserve the right to consolidate such orders into a single general delivery; no additional costs shall arise, because the shipping and delivery costs for Germany are included in the specified prices; in the case of deliveries to third countries, a separate price calculation shall be made (cf. § 3(1)2). We shall be entitled to render partial deliveries, provided this is reasonable for you.
- The delivery period shall amount to approx. ten (10) working days. It shall begin five (5) working days after the order date. We note that all information on the shipment and/or delivery of an object represents merely foreseeable information and approximate values. If, in rare cases, ARTUSIAST determines that objects ordered by you have already been sold simultaneiously or the object has been delivered back to the submitter by our partners, you shall be informed thereof separately by e-mail. The statutory claims of the orderer shall not be prejudiced hereby.
- We deliver goods within the EU and Switzerland. For other parts of the world, contact our office. (Jay Art GmbH, Poststrasse 21, 10178 Berlin, email@example.com, +49 30 7469 6690)
§ 7 Insurance, Packing and Customs
- Objects sold via ARTUSIAST shall be shipped with the transport insurance of the respective seller. ARTUSIAST regularly checks the transport insurance of our partners but cannot assume any warranty that the seller has correctly insured the object.
- Objects purchased via ARTUSIAST are properly packed by the seller to enable safe transport. Because ARTUSIAST does not pack the objects of its partners itself, we cannot assume any liability for the correct packing of these very objects.
- The customer shall inspect the product and packaging immediately upon delivery for proper functioning, completeness, and absence of defects.
§ 8 Revocation Right
- If you order products from ARTUSIAST for delivery outside EU, import duties and taxes could be incurred in addition to the shipping costs. Therefore, we ask orderers in the case of deliveries abroad to provide further information on the exact destination using the provided contact form so that the correct gross price including all costs and taxes can be ascertained and then communicated against separately by e-mail before the order. Further, please note that you will be viewed as the importer when ordering from ARTUSIAST and have to observe all laws and regulations of the country in which you receive the objects. The protection of your data is important to us and we would like to make our international customers aware that international deliveries might be opened and searched by customs authorities.
- If you are a consumer (i.e. a natural person issuing the order for a purpose that cannot be ascribed to your commercial or independent professional activity), you are entitled to a revocation right in accordance with the provisions of law.
- In the event you exercise the revocation right, you shall bear the direct costs of sending back the goods in accordance with the detailed content of the following briefing on your revocation right.
- Otherwise, the revocation right shall be subject to the provisions reflected in the following
briefing on your revocation right:
You have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day on which you acquire,or a third party other than the carrier and indicated by you acquires, physical possession of the last good. To exercise the right to cancel, you must inform us (Jay Art GmbH, Poststrasse 21, 10178 Berlin, firstname.lastname@example.org, +49 30 7469 6690) of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right of cancel before the cancellation period has expired.
Consequences of Revocation
If you cancel this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.
You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired. You will have to bear the direct cost of returning the goods. You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
– End of briefing on revocation right –
Note on the Statutory Exemption from the Revocation Right
The right to cancel does not apply to the following kind of contracts:
• Contracts for the supply of goods that are made to the consumer’s specifications or are clearly personalised.
• Contracts for the supply of goods which are liable to deteriorate or expire rapidly.
• Contracts for the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items.
• Contracts for the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery.
• Contracts for the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications.
§ 9 Material Defects and Defects in Title Related to the Objects
ARTUSIAST shall not be liable for the condition of the sold objects of its partners, as in this caseARTUSIAST does not appear as the seller. Hence, we initially refer to the general terms and conditions of business of the relevant seller offering and selling his or her objects via our platform.
The information on our online platform does not constitute representations and warranties in the terms of law.
The above liability restrictions shall not apply in the event of injury to life, limb or health, to a defect after the assumption of a warranty for the feature of the object or in the event of fraudulently concealed defects.
To the extent liability is excluded or restricted by ARTUSIAST, this shall also apply to the personal liability of employees, representatives and vicarious agents.
§ 10 Liability
- We shall be liable to you in all cases of contractual and extra-contractual liability due to intentional action and gross negligence in accordance with the provisions of law for damage compensation and compensation of expenses rendered in vain.
- In other cases, we shall be liable—unless stipulated otherwise in § 3—only in the event of the breach of a contractual duty, the fulfillment of which first enables the due performance of this agreement and in whose compliance you as customer can normally trust (material contractual duties); our liability shall be limited to the compensation of foreseeable and typical damage. In all other cases, our liability shall be excluded, subject to the provision in § 3.
- Our liability for damage based on injury to life, limb or health and in accordance with the Product Liability Act shall not be prejudiced by the above restrictions and exclusions of liability.
§ 11 Data Protection
1. Data required for the shipment of merchandise, such as name and address, shall be passed on to the company responsible for delivery.
2. All personal data required for the performance of contract shall be saved in electronic form and handled confidentially.
§ 12 Applicable Law and Jurisdiction
- The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If you have issued the order as a consumer and have your habitual place of residence in another country at the time of your order, the application of the mandatory provisions of law in that country shall not be prejudiced by the choice of law made in Sentence 1.
- If you are a merchant and your registered office is in Germany on the order date, the exclusive place of jurisdiction shall be the registered office of the seller, as disclosed in the seller's general terms and conditions of business [add: registered office of seller]. Otherwise, the applicable provisions of law shall apply to the local and international jurisdiction.
§ 13 Severability / Modifications of these Terms and Conditions
We hereby reserve the right to undertake modifications to our website, rules, terms and conditions, including these Terms and Conditions of Sale, at any time. These Terms and Conditions of Sale, the terms and the conditions of contract and the General Terms and Conditions of Business in effect on the order date shall apply to your order, unless a modification to these terms and conditions is required by law or by administrative order (in which case they shall also apply to orders you placed previously). If any provision of these Terms and Conditions of Sale is invalid, null and void or impracticable for any reason, such provision shall be considered as severable and shall not impact the validity and practicability of the remaining provisions.
OUR CONTACT INFORMATION
Our contact information:
Jay Art GmbH, Poststrasse 21, 10178 Berlin,
Our registered office is in Berlin.
Registration Court: Local Court of Berlin (Charlottenburg) * Commercial Register No. B 151743B