These Conditions of Business govern therelationship between (i) you as the bidder and/or the buyer of a lot or lotsoffered on PhiAuctions.com (the “Site”) (ii) Phi Auctions (“PhiAuctions”, “we”, “us”, or “our”) acting asagent for the seller and providing services to the bidder and/or the buyer,(iii) the seller of the lot(s) consigned to Phi Auctions and being offered forsale on the Site (the “Seller”) and (iv) Phi Auctions as the ownerand operator of the Site.
These Conditions of Business, which set out theterms on which Phi Auctions and the Seller contract with you, and all otherterms and conditions applicable to the sale of lot(s) offered on the Site anddisplayed or linked to the lot page on the Site (the “AdditionalTerms”), form the entire agreement between you, Phi Auctions and theSeller. In the event of a conflict between these Conditions of Business and theAdditional Terms, the Additional Terms shall prevail. These Conditions ofBusiness, which set out the terms on which Phi Auctions and the Seller contractwith you, and all other terms and conditions applicable to the sale of lot(s)offered on the Site and displayed or linked to the lot page on the Site (the“Additional Terms”), form the entire agreement between you, PhiAuctions and the Seller. In the event of a conflict between these Conditions ofBusiness and the Additional Terms, the Additional Terms shall prevail.
We have the right to amend these Conditions ofBusiness and the Additional Terms from time to time, and we shall inform you ofany such amendments by posting notices on the Site.
You should read these Conditions of Businessand any Additional Terms carefully before participating in our sales. Byregistering to bid on the Site, you acknowledge that you are bound by theseConditions of Business and any Additional Terms.
1. Phi Auctions as Agent
Unless otherwise indicated, Phi Auctions actsas an agent for the Seller. If you buy a lot on the Site, the contract of saleof the lot is concluded directly between you, as the buyer, and the Seller.Separately, Phi Auctions provides certain services to you in connection withyour bidding on, and buying, the lot.
2. Our Sales
PhiAuctions.com is an online platform where youcan buy fine art and collectibles. You can buy property through the Site duringthe timed auction. You can bid for the lot and if at the end of the timedauction, your bid is the highest bid (if there is more than one highest bid onthe lot at the end of the timed auction, the highest bid first received by PhiAuctions will be the winning bid), you will become the buyer of the lot. Thedate and time when the timed auction commence and end are clearly displayed onthe Site.
3. Property Details
Lots are sold on the Site subject to theLimited Authorship Guarantee (set out in Paragraph 19 below), and in thecondition that they are in at the time of the sale on the following basis.
(a) The information provided on the Site inrelation to lots offered for sale is dependent on information provided to us bythe Seller, and Phi Auctions is not able to and does not carry out exhaustivedue diligence on each lot. In particular, when we do not take possession of thelot, we do not have the opportunity to inspect its physical condition, and werely on the images of the lot and other information provided by the Seller todescribe it on the Site. You acknowledge that our and your ability to conductdue diligence on lots is limited, and you accept that when bidding and/orbuying a lot on the Site, you rely on information provided by the Seller.Notwithstanding the foregoing, we shall exercise reasonable care whendescribing a lot on the Site in light of (i) the information provided to us bythe Seller; (ii) scholarship and technical knowledge and (iii) the generallyaccepted opinions of relevant experts, in each case as is reasonably availableto Phi Auctions at the time of the sale taking into account the number of lotsposted by Phi Auctions on the Site and the limited amount of time available toPhi Auctions to post such lots.
(b) You may contact Phi Auctions to inspect thelot to satisfy yourself as to its condition and description before makingoffers to purchase. Inspections are granted on a discretionary basis and arecontingent on the nature and the location of the lot. We offer no guaranteethat the lot you wish to inspect will be available for inspection. If youdecide to make an offer for a lot you have not inspected prior to making theoffer, you acknowledge that you do so at your own risk.
(c) You acknowledge that many lots are of anage and type, which means that they are not in perfect condition. Lots may haveother faults and imperfections not expressly referred to in the lot descriptionon the Site or in a condition report. All dimensions are approximate.Illustrations are for identification purposes only and cannot be used asprecise indications of size or convey full information as to the actualcondition of lots.
(d) The description of lots on the Site mayinclude references to condition. Additionally, upon request, we may provide areport on the condition of a lot. If the lot is not in our possession when thecondition report is requested, we may facilitate the provision of a conditionreport by the Seller. Alternatively, we may facilitate the commissioning of acondition report by the prospective bidder. The provision of a condition reportmay not be practical, given time constraints, the physical location of the lotand other considerations. The condition of lots can vary widely due to factorssuch as age, previous damage, restoration, repair and wear and tear. Theirnature means that they will rarely be in perfect condition. Lots are sold inthe condition they are in at the time of the sale. Any reference to conditionon the lot page on the Site will not amount to a full description of condition,and images may not show the condition of the lot clearly. In particular, colorsand shades may look different in print or on screen to how they look in reallife. Condition reports may help you evaluate the condition of a lot. They areprovided free of charge as a convenience to prospective bidders and are forguidance only. They may not refer to all faults, restoration, alteration oradaptation because our staff are not professional restorers or conservators,accordingly condition reports posted on the lot page on the Site or provided byus simply record the result of a cursory visual inspection of the lot. For thatreason they are not an alternative to examining a lot in person or taking yourown professional advice. It is your responsibility to ensure that you havereceived and considered any condition report. The description of a lot on theSite is not a warranty and Phi Auctions does not accept any liabilitywhatsoever for any condition report and prospective bidders’ reliance on them.
(e) Information provided to you in respect ofany lot, including any representation or description on the Site, in acondition report or elsewhere, is not a representation of fact but rather a statementof opinion held by the Seller and/or Phi Auctions.
(f) Save for the Limited Authorship Guarantee andwithout prejudice to any mandatory obligation placed on us and/or the Seller byapplicable law, all lots are sold “AS IS” without any representationsor warranties by us or the Seller as to merchantability, fitness for aparticular purpose, the correctness of the description of the lot including butnot limited to its physical condition, size, quality, rarity, importance,medium, provenance, exhibitions, literature or historical relevance and nostatement anywhere, whether oral or written, whether made on the Site orelsewhere, shall be deemed such a representation or warranty.
4. Participating in the Sale
(a) Phi Auctions has absolute discretion todeny participation in a sale on the Site.
(b) You must register to bid on the Site toparticipate in our timed auction. In order to register, you will be asked tosupply the information requested on our registration page for verificationpurposes only. Registrants must be 18 or over to participate in an onlineauction. To bid on a lot, you will need to provide your credit cardinformation. We will execute a $1.00 authorization or temporary charge on yourcredit card to verify that your credit card is valid and active. Thisauthorization does not cost you anything and will expire in a few days.
(c) To purchase a lot from one of our timedauctions:
(i) You must enter a bid amount equal to orgreater than the amount displayed below the “Place Bid” field, thenclick on the “Place Bid” button. You will be asked to provide yourcredit card number and personal data before you can place a bid. Once you haveplaced your bid, you will be asked to “Confirm Your Bid”. You willreceive an email confirmation of your bid. Once you have confirmed your bid,the Site will automatically place a straight bid at the next bidding incrementon your behalf. Bidding increments can be found at Paragraph 4.1.1(c) below.The Site will treat your bid as your “Maximum Bid”. In other words,if your bid exceeds the next bidding increment, the Site will keep you in thelead by placing automatic bids on your behalf in response to other bids up toyour “Maximum Bid”. As the auction proceeds, the Site will processbids it receives and execute them in the order in which they are received. TheSite will increase your bid by increments only as much as necessary to maintainyour position as the highest bidder. You will be notified by email if a bidexceeds your “Maximum Bid”, to give you the opportunity to place anew, higher, bid. Your “Maximum Bid” amount if in excess of the nextbidding increment, does not necessarily mean you will pay that amount for thelot. You may end up paying less, depending on how many other bids are receivedfor the lot and the amount of those bids. If the lot has a Reserve Price (asdefined below), and your “Maximum Bid” meets or exceeds the ReservePrice, the Site will automatically bid on your behalf at the Reserve Price (andnot at the next bidding increment unless the next bidding increment and theReserve Price are the same). Thereafter, the Site will execute bids on yourbehalf against other bidders.
(ii) Given the fast-pace of online auctions,bidding can move quickly. You accept and agree that bids submitted are finaland you may not, under any circumstances, amend, retract, withdraw or revokeyour bid.
(iii) The highest bid on a lot from anauthorized bidder when the timed auction closes will be the winning bid. Ifthere is more than one highest bid on a lot received from an authorized bidderat the end of the timed auction, the highest bid first placed on the Site willbe the winning bid.
(iv) By clicking on the button “ConfirmBid” on the “Confirm Your Bid” page, you will be deemed to havemade an irrevocable offer to buy the lot for a price up to the amount shown asyour current bid on that page. If you become the winning bidder, we will notifyyou by email, and a binding sale contract will automatically be concludedbetween you as the buyer, and the Seller of the lot. The price will be theamount shown on the email confirmation, plus additional charges. You will thenbe required to complete your purchase. Failure to complete your purchase willamount to a breach by you of the sale contract.
(v) You are requested to log in as soon aspossible after the conclusion of the timed auction to obtain details on theoutcome of any bids you may have placed by checking “Items You Won”under the “Account” section of the Site and to complete the “CheckOut” process by providing us the information requested, including yourshipping address, and making payment using one of our payment methods.
(vi) Bidding generally opens below the lowestimate and advances in increments as follows, subject to Phi Auctions’sdiscretion:
Below $2,000 by $100s
$2,000 to $4,999 by $200s
$5,000 to $9,999 by $500s
$10,000 to $19,999 by $1,000s
$20,000 to $49,999 by $2,000s
$50,000 to $99,999 by $5,000s
$100,000 to $199,999 by $10,000s
$200,000 to $499,999 by $20,000s
$500,000 to $999,999 by $50,000s
above $1,000,000 by $100,000s.
Phi Auctions may vary the increments aboveduring the course of an auction at our discretion.
(d) When bidding online, you accept personalliability to pay the Total Amount Due defined in Paragraph 6.1.1(a) below.
(e) By participating in our auctions, yourepresent and warrant that any bids placed or offers made by you are not theproduct of any collusive or other anti-competitive agreement and are otherwiseconsistent with all applicable laws.
(f) The provision of the online platformenabling your participation in the sale is a free service provided by PhiAuctions. While it undertakes to exercise reasonable care in providing theservice, Phi Auctions does accept any liability for failure to allow you toexecute any offer or bid.
(g) Employees of Phi Auctions and itsaffiliated companies may participate in auction sales on the Site.
(h) Broadband or other internet capacityconstraints, corporate firewalls and other technical problems beyond ourreasonable control may create difficulties for some registered users includingbut not limited to accessing sales, placing bids, receiving emails and makingonline payments. Errors may occur in the quality of digital images. PhiAuctions accepts no liability for such difficulties or errors.
5. Conduct of the Sale
(a) Unless indicated otherwise, all lots in PhiAuctions’s auctions are offered with a reserve price. A reserve price is theconfidential minimum selling price agreed between Phi Auctions and the Sellerand below which the lot cannot be sold (the “Reserve Price”). TheReserve Price will not exceed the low pre-sale estimate shown on the lot pageon the Site.
(b) Certain lots offered on the Site may beowned by Phi Auctions or its affiliated companies.
(c) Occasionally, Phi Auctions or one of itsaffiliated companies may have a direct financial interest in a lot offered onthe Site.
(d) Phi Auctions reserves the right to reject,revoke or refuse to accept any bid at any time before, during or after anyauction. If any dispute arises after the sale, our sale record is conclusive.
(e) Phi Auctions reserves the right to restarta sale or to restart bidding on any particular lot if we consider it isappropriate and reasonable to do so. Phi Auctions shall have no liabilitywhatsoever for any such action taken by us. If any dispute arises after thesale, our sale record is conclusive.
(f) Phi Auctions reserves the right, at oursole discretion, to withdraw any lot from the sale, whether prior to or duringthe auction, and shall have no liability whatsoever for any such withdrawal. Ifany dispute arises after the sale, our sale record is conclusive.
(g) Our sales will usually be conducted in USDollars and all payments are due, and must be made, in US Dollars.
(h) The sale of a lot after the end of a timedauction shall incorporate these Conditions of Business, as if sold in theauction.
6. Payment of the Total Amount Due
(a) In addition to the winning bid price of thelot, the buyer is liable to pay Phi Auctions the buyer’s premium, the shippingcosts (as set out in Paragraph 10 below) and the Loss Damage Coverage (asdefined in Paragraph 11 below), plus any applicable sales tax, use tax, VAT orother tax due (collectively, the “Total Amount Due”).
(b) The buyer’s premium is 20% of the winningbid price. Phi Auctions charges a buyer’s premium on lots sold on the Siteunless the lot page on the Site explicitly states that a buyer’s premium is notdue on the lot. We reserve the right to pay from the buyer’s premium anintroductory commission to any third party who assisted us in sourcing orselling the lot.
(c) All applicable taxes are payable inaccordance with applicable law. All prices, fees, charges and expenses set outin these Conditions of Business are quoted exclusive of applicable taxes.
(d) You may be liable to pay additional taxesand charges such as import VAT and customs duty if the lot is shipped to thecountry you designate. Phi Auctions shall not collect and pay these additionaltaxes and charges on your behalf and they are your sole responsibility.
(e) You must pay the Total Amount Due in atimely manner, and full payment on time is of paramount importance to theSeller and Phi Auctions (time is of the essence). In the case of a timedauction, you must make payment within five (5) Business Days of the end of theauction. A “Business Day” is a day when banks are open for businessin the United States, excluding Saturdays, Sundays and public holidays. If youfail to make payment of the Total Amount Due within five (5) Business Days ofthe end of the auction, you irrevocably authorize Phi Auctions, at our solediscretion, to charge you for any outstanding portion of the Total Amount Dueusing any payment method you have provided to Phi Auctions at any time,including credit card.
(f) Payment must be made in the currency of theauction by credit card or wire transfer as follows for any lots sold by PhiAuctions:
(i) Phi Auctions accepts American Express, Visaand MasterCard. A processing fee will apply.
(ii) Payment by wire transfer may be madedirectly to Phi Auctions. When making payment by wire transfer, you must quotethe relevant sale and lot number. Bank transfer details:
Bank: Bank of America
Bank Address: 254 West 57th Street, New York, NY 10107
Account: Upsilon Gallery, LLC DBA Phi Auctions
ABA Routing: 021000322
Bank Account No: 483073982358
SWIFT Code: BOFAUS3N
Reference: [Sale and Lot Number]
(g) Credit Card purchases may not exceed $8,000per purchase. In the event a credit card charge is not approved, the buyerremains personally liable to Phi Auctions for all amounts due. If you make anunjustified credit card or debit card charge or chargeback then you will beliable to pay Phi Auctions within seven (7) days following our written request:
(i) an amount equal to the amount of thechargeback;
(ii) all third party expenses incurred by us inrelation to the chargeback (including charges made by our or your bank orpayment processor or card issuer;
(iii) an administration fee of $50.00; and
(iv) all our reasonable costs, losses andexpenses incurred in recovering the amounts referred to in this Clause (g)(including without limitation legal fees and debt collection fees).
(h) Where a separate shipping invoice is issuedto you, you will have five (5) Business Days from the date of the invoice tosettle it in the manner described in Paragraph 6.1.1(f)(i) or (ii) above.
(i) If you have any questions about payment,please contact +1 (347) 685-9470 firstname.lastname@example.org.
(j) Additional Information on Payments. Pleasenote that Phi Auctions will not accept payments for purchased lots from anyparty other than the purchaser, unless otherwise agreed between the purchaserand Phi Auctions prior to the sale. It is against Phi Auctions’s general policyto accept payment in the form of cash. It is Phi Auctions’s policy to requestany new clients to provide: verification of identity (by providing some form ofgovernment issued identification containing a photograph, such as a passport,identity card or driver’s license), confirmation of permanent address andidentification of the source of the client’s funds.
7. Transfer of Ownership
(a) Ownership of a lot will pass to the buyerwhen Phi Auctions receives payment of the full winning bid price of the lot,the buyer’s premium, any applicable sales tax, use tax, VAT or other tax due onwinning bid price of the lot, and the buyer’s premium (collectively, the“Purchase Price”) in cleared funds.
8. Transfer of Risk
(a) Risk of loss or damage to a lot shall passfrom the Seller to the buyer on the date when Phi Auctions receives the fullPurchase Price in cleared funds.
(a) Delivery to the buyer of a lot purchased onthe Site occurs when the lot is handed over to the shipper by the Seller or byPhi Auctions for packing and shipping.
(b) Phi Auctions and the Seller are not obligedto release a lot to the shipper, and we or the Seller may withhold delivery ofthe lot, until we have received the Total Amount Due in cleared funds, thebuyer has paid all outstanding amounts due to Phi Auctions or any of itsaffiliated companies, and relevant anti-money laundering or anti-terrorismfinancing checks have been completed.
10. Packing and Shipping
(a) Phi Auctions will facilitate the packingand shipping of lots purchased on the Site, no matter where the Seller and thebuyer are located. Our bidding page indicates the country from where the lotwill be shipped.
(b) Phi Auctions does not pack and ship lots.We will, on your behalf and at your expense, procure packing and shippingservices by third party shippers. The shipper will pack and ship the lot asyour agent to the address designated by you.
(c) Our standard shipping timeline from paymentfor lot and shipping fees to delivery is three (3) to four (4) weeks forshipments within the continental United States or domestic UK; six (6) to eight(8) weeks for all other shipments.
(d) Your shipment will be managed by one of PhiAuctions’s shipping partners. Most lots are shipped by FedEx.
(e) The buyer is liable to pay all packing andshipping costs incurred in relation to lots bought on the Site. If the shipmentof a lot is not automated on the Site, our shipping department will contact youseparately to arrange shipment and provide you with details of the shipmentcosts. We will issue you a separate shipping invoice, and you will be requiredto settle it within seven (7) Business Days of the date of the invoice. We willonly process the shipment after receiving full payment of the Total Amount Duein cleared funds for the lot.
(f) Phi Auctions has received contractualassurances from the Seller that the Seller will release the lot(s) to the buyerwithin five (5) to seven (7) calendar days from being notified that PhiAuctions has received the Total Amount Due in cleared funds. If the Sellerfails to release the lot(s) to the buyer in breach of the Seller’s contractualassurances, and the Seller has not rectified his/her/its breach followingwritten notice by Phi Auctions to do so within fourteen (14) calendar days fromthe date of such notice, Phi Auctions shall refund the buyer the full amountpaid in relation to the lot(s), the contract for the sale and purchase of thelot(s) shall be at an end, and the buyer shall have no further claim againsteither the Seller or Phi Auctions including but not limited to any claim forloss or damage (whether direct or indirect or foreseeable), cost or expense(included but not limited to legal fees or expenses).
11. Assumption of Risk
(a) Phi Auctions will arrange for the packingand shipping of all purchased lots (“Lots”). We will provide thebuyer with a shipping quote for the Lots at the time of checkout or shortlythereafter. As a service to our buyers, Phi Auctions will assume liability forthe risk of loss of or damage to the Lots while in transit at no additionalcost to the buyer. We refer to this assumption of risk as Loss Damage Coverage(“LDC”). The LDC is subject in all respects to Phi Auctions’s blanketliability coverage under its fine art insurance policy in effect at the time ofthe loss or damage to the Lots while in transit, and the terms and conditionsthereof, including without limitation: declarations; limits; coverageextensions; supplemental coverages; valuation; deductibles and coinsurance; endorsements;definitions; property covered; property not covered; perils covered; perilsexcluded; what must be done in case of loss; how much is paid; loss payment;and other conditions. Currently, the LDC will assume the risk of loss or damageto lots in transit up to $500,000 for any one occurrence. A single occurrenceleading to loss or damage may affect multiple Lots owned by one or more buyers.In no event will the LDC for any loss or damage to Lots in transit exceed PhiAuctions’s coverage under its blanket liability coverage.
(b) Any and all claims for loss of or damage tothe Lots must be made in writing to Phi Auctions no later than seven (7)business days after the date of delivery of the lot to the buyer or the buyer’sdesignated representative. Images documenting the claim for loss or damage mustbe provided to Phi Auctions and all original packing material must be saved tosupport any required investigation of the claim for loss or damage.
12. Remedies for Non-Payment
(a) Without prejudice to any rights the Sellermay have, if the buyer without prior agreement fails to make payment of theTotal Amount Due for a lot as provided in these Conditions of Business, PhiAuctions may in our sole discretion exercise one or more of the followingremedies: (i) charge a cancellation fee of twenty percent (20%) of the hammerprice using any payment method the buyer has provided to Phi Auctions at anytime, including credit card. (ii) store the lot at Phi Auctions’s premises orelsewhere at the buyer’s sole risk and expense (iii) cancel the sale of thelot, retaining any partial payment of the Total Amount Due as liquidateddamages; (iv) reject future bids from the buyer or render such bids subject topayment of a deposit; (v) charge interest at 12% per annum from the datepayment became due until the date the Total Amount Due is received in clearedfunds; (vi) exercise a lien over any of the buyer’s property which is in thepossession of Phi Auctions and instruct the Seller or any of our affiliatedcompanies to exercise a lien over any of the buyer’s property which is in theirpossession and, in each case, no earlier than 30 calendar days from the date ofwritten notice to the buyer, arrange the sale of such property and apply theproceeds to the outstanding amount owed to Phi Auctions, the Seller or any ofour affiliated companies after the deduction from sale proceeds of our standardvendor’s commission and all sale-related expenses, with any balance of saleproceeds remaining being paid to the buyer, and without waiving any right toany shortfall if the net sale proceeds are insufficient to settle alloutstanding sums owed by the buyer to the Seller or Phi Auctions; (vii) resellthe lot by auction or private sale, with a Reserve Price if the lot is sold atauction and a sale price if the lot is sold privately set by Phi Auctions atits reasonable discretion, it being understood that in the event such resale isfor less than the original Purchase Price of that lot, the buyer will remainliable for the shortfall, in addition to, for each resale, our standardvendor’s commission and all expenses incurred in such resale. In addition, thedefaulting buyer agrees to pay us a restocking fee of twenty percent (20%) ofthe hammer price and authorizes us to charge the buyer’s credit card for therestocking fee; (viii) commence legal proceedings to recover the Purchase Pricedue for the lot, together with interest and the costs of such proceedings(including but not limited to legal fees); (ix) set off the outstanding amount remainingunpaid by the buyer against any amounts which we or any of our affiliatedcompanies may owe the buyer in any other transactions; (x) release the name andaddress of the buyer to the Seller to enable the Seller to commence legalproceedings to recover the amounts due, interest and legal costs or (xi) takesuch other action as we deem necessary or appropriate.
(b) In the event the buyer is in default ofpayment to any of our affiliated companies, the buyer irrevocably authorizesPhi Auctions to pledge the buyer’s property in our possession by actual orconstructive delivery to our affiliated company as security for the payment ofany outstanding amount due. Phi Auctions will notify the buyer if the buyer’sproperty has been delivered to an affiliated company by way of a pledge.
13. Rescission by Phi Auctions
Phi Auctions shall have the right, but not theobligation, to rescind a sale without notice to the buyer if we reasonablybelieve that there is a material breach of the Seller’s representations andwarranties or the Limited Authorship Guarantee (described below) or an adverseclaim is made by a third party. Upon notice of Phi Auctions’s election torescind the sale, the buyer will promptly return the lot to Phi Auctions, andwe will then refund the buyer the Total Amount Due paid to us. The refund shallconstitute the sole remedy and recourse of the buyer against Phi Auctions andthe Seller with respect to such rescinded sale.
14. Export and Import Controls; Shipping Restrictions
(a) Before bidding on any lot, you are advisedto make your own inquiries as to whether a license is required to export orimport the lot. It is your sole responsibility to identify and obtain anynecessary export, import, firearm, endangered species or other permits for anylot purchased on the Site. Neither Phi Auctions nor the Seller make anyrepresentations or warranties as to whether any lot is or is not subject toexport or import restrictions or any embargoes. Any delay in obtaining or thedenial of any permit or license shall not justify cancellation or rescission ofthe sale or any delay in payment.
(b) Certain geographic-specific restrictionsexist that may prohibit delivery of a lot(s). You may be prevented frombidding, buying, or calculating shipping costs if you elect to ship to aprohibited destination. Phi Auctions reserves the right to cancel the sale ifit determines, in its sole discretion, that the property cannot be shipped toyour destination.
(c) Lots made of, or including (regardless ofpercentage), endangered species of wildlife are indicated on the Site. Thismaterial includes, among other things, ivory, tortoiseshell, crocodile skin,rhinoceros horn, whalebone and certain species of coral, together withBrazilian rosewood. Several countries refuse to allow the importation ofproperty containing these materials, and other countries require a license fromregulatory agencies in the countries of exportation or importation. By way ofexample only, the United States prohibits the importation of any itemcontaining African elephant ivory. It is your sole responsibility to checkapplicable laws and regulations before bidding on any lot containing wildlifematerial. Identifying endangered species of wildlife in a lot is notstraightforward and notices in the lot description on the Site merely reflectsPhi Auctions’s reasonable opinion and are for the bidder’s general guidanceonly. You rely on such notices at your risk.
(d) Upon request, Phi Auctions is willing toassist the buyer in applying for the appropriate licenses or permits. However,there is no assurance that an export license or certificate can be obtained.
15. Data Protection
(b) In order to provide our services, we maydisclose your personal data to third parties, including professional advisors,shippers and credit agencies located anywhere in the world, including to countrieswhich may not offer equivalent protection of personal information to thatoffered in the country where you reside. We will disclose, share with andtransfer your personal data to Phi Auctions’s affiliated persons (natural orlegal) for administration, sale, auction, payment and shipping relatedpurposes. You expressly consent to such transfer of your personal data. We willnot sell, rent or otherwise transfer any of your personal data to third partiesexcept as otherwise expressly provided in this Paragraph 16 or in our PrivacyPolicy. You can prevent us from using your personal data for marketing purposesat any time by notifying us at email@example.com.
16. Exclusions and Limitations of Liability
(a) Subject to Paragraphs (d) and (e) below,Phi Auctions expressly disclaim, and accept no liability to you, for:
(i) errors or failures to execute bids placedon the Site, including without limitation, errors or failures caused by (a)loss of connectivity; (b) issues pertaining to software malfunction; (c)glitches, bugs or inaccuracies on our website; (d) your use of or yourinability to access the Site; (e) your internet connection, computer or mobiledevice; and (f) any viruses and other malicious software obtained by accessing,or linking to, the Site;
(ii) the conduct of the auction of any lot,other than under the Limited Authenticity Warranty;
(iii) any representations and warranties givenby the Seller or any terms that are implied into contracts by law which are theresponsibility of the Seller; and
(iv) any loss of profit, loss of business,business interruption, loss of opportunity, loss of anticipated savings, lossof goodwill, loss of revenue or any wasted expenditure or any indirect orconsequential loss or damage whatsoever.
(b) Notwithstanding Paragraph (a) above, if weare found to be liable to you for any reason in connection to the sale of a lotor the provision of services in relation to a lot, then subject to Paragraphs(d) and ) below, our total aggregate liability to you in connection with thatlot shall be limited to the buyer’s premium paid by you to us for the lot.
(c) If the Seller is found to be liable to youfor any reason in connection to the sale of a lot, then subject to Paragraphs(d) and ) below, the Seller’s total liability to you in connection with thatlot shall be limited to the winning bid price paid by you for the lot.
(d) No provision in these Conditions ofBusiness shall be deemed to exclude or limit the Seller or Phi Auctions’sliability to you in respect of any fraud or fraudulent misrepresentation madeby any of them, or in respect of death or personal injury caused by any oftheir negligent acts or omissions.
(e) Some jurisdictions do not allow exclusionsand limitations of liability, and these exclusions and limitations of liabilitymay not apply to you.
The copyright in all images, illustrations andwritten materials produced by or for Phi Auctions relating to a lot, includingthe contents on the Site, is and shall remain at all times the property of PhiAuctions and such images and materials may not be used by you or any otherparty without our prior written consent. Phi Auctions and the Seller make norepresentations or warranties that the buyer of a lot will acquire anycopyright or other intellectual property rights in the lot.
18. Restriction on Resale
(a) The buyer of a lot on the Site shall notoffer the lot for sale until the lot is paid for and physically delivered tothe buyer or the buyer’s designated agent.
(b) Lots may be subject to a resale restrictionfor one (1) year or for some other period of time indicated in the lotdescription posted on the Site. The buyer agrees that if the lot becomesavailable for sale within one (1) year or such other period indicated in thelot description from the date of purchase, the lot will be offered first to theartist or the Seller at the fair market value. The artist or the Sellerreserves the right to decline to purchase the lot at the fair market value.
19. Limited Authorship Guarantee
(a) Subject to the exclusions provided belowand/or in the lot description posted on the Site and/or in any AdditionalTerms, for a period of thirty (30) calendar days from the date of delivery ofthe lot to the buyer or the buyer’s designated representative, Phi Auctionswarrants that the authorship, maker, or origin (collectively“Authorship”) of each lot sold on the Site. (the “LimitedAuthorship Guarantee”).
(b) This Limited Authorship Guarantee onlyextends to the original buyer of record (i.e. the registered successful buyer)of the lot, and does not extend to (i) subsequent owners of the lot or anythird party, including purchasers or recipients by way of gift from theoriginal buyer, heirs, successors, beneficiaries and assigns; (ii) lots wherethe description of the lot on the Site states that there is a conflict ofopinion on the authorship of the lot; (iii) lots where the Authorship indicatedin the lot description on the Site was on the date of sale consistent with thegenerally accepted opinions of specialists, scholars or other experts; (iv)lots whose description is proved inaccurate by means of scientific methods ortests not generally accepted for use at the time of the posting of the lot onthe Site or which were at such time deemed unreasonably expensive orimpractical to use or likely in our reasonable opinion to have caused damage orloss in value to the lot or (v) lots where there has been no material loss invalue from its value had the lot description corresponded with the lot’sauthorship or origin.
(c) In any claim for breach of the LimitedAuthorship Guarantee, Phi Auctions may require the buyer, as a condition torescinding any sale under this guarantee, to provide at the buyer’s expense thewritten opinions of two recognized experts approved in advance by us. We shallnot be bound by any expert report produced by the buyer and reserve the rightto consult our own experts at our expense. If we agree to rescind a sale underthe Limited Authorship Guarantee, Phi Auctions shall refund to the buyer thereasonable costs charged by the experts commissioned by the buyer and approvedin advance by us.
(d) Subject to the exclusions set forth inParagraph 20(a) above, the buyer may bring a claim for breach of the LimitedAuthorship Guarantee provided that (i) he/she has notified Phi Auctions inwriting within seven (7) calendar days of receiving any information whichcauses the buyer to question the Authorship indicated in the lot description,and such notice shall be given no later than thirty (30) calendar days from thedate of the delivery of the lot to the buyer or the buyer’s designated representative,specifying the sale in which the lot was included, the lot number in the onlinecatalogue and the reasons why the Authorship is being questioned and (ii) thebuyer returns the lot to Phi Auctions in the same condition as at the time ofits purchase no later than fourteen (14) calendar days from the date of thebuyer’s notification to Phi Auctions described in this Paragraph and is able totransfer good and marketable title in the lot free from any third party claimarising after the date of the purchase. Phi Auctions has discretion to waiveany of the above requirements but shall not be compelled exercise thatdiscretion.
(e) The buyer may bring a claim for breach ofthe Limited Authorship Guarantee provided that (i) he/she has notified PhiAuctions in writing within seven (7) calendar days of receiving any informationwhich causes the buyer to question the Authorship indicated in the lotdescription, and such notice shall be given no later than thirty (30) calendardays from the date of the delivery of the lot to the buyer or the buyer’sdesignated representative, specifying the sale in which the lot was included,the lot number in the online catalogue and the reasons why the Authorship isbeing questioned and (ii) the buyer returns the lot to Phi Auctions in the samecondition as at the time of its purchase no later than fourteen (14) calendardays from the date of the buyer’s notification to Phi Auctions described inthis Paragraph and is able to transfer good and marketable title in the lotfree from any third party claim arising after the date of the purchase. PhiAuctions has discretion to waive any of the above requirements but shall not becompelled exercise that discretion.
(a) These Conditions of Business and anyAdditional Terms, as changed or supplemented, set out the entire agreementbetween you, the Seller and Phi Auctions with respect to the transactionscontemplated herein and supersede all prior and contemporaneous written oral orimplied understandings, representations and agreements.
(b) Unless explicitly provided otherwise,notices to Phi Auctions shall be in writing and addressed as follows: PhiAuctions, 146 West 57th Street, 36C, New York, NY 10019, United States ofAmerica. Notices to you shall be addressed to the last address provided by youin writing.
(c) These Conditions of Business are notassignable by you without our prior written consent but are binding on yoursuccessors, assigns and representatives.
(d) Should any provision of these Conditions ofBusiness be held void, invalid or unenforceable for any reason, the remainingprovisions shall remain in full force and effect.
(e) No failure by any party to exercise, norany delay in exercising, any right or remedy under these Conditions of Businessshall act as a waiver or release thereof in whole or in part.
21. Applicable Law and Jurisdiction
(a) These Conditions of Business, anyAdditional Terms, the conduct of sales on the Site and any matters related to,or any contractual or non-contractual disputes or claims arising from, any ofthe foregoing, shall be governed by and construed and enforced in accordancewith the laws of the State of New York without regard to conflict of lawsprinciples. By participating in a timed auction, bidders are deemed to have consentedto the jurisdiction of the state and federal courts in the State of New York.
22. Special Conditions
(a) Phi Auctions only warrants the artist ormaker indicated in the lot description. Such heading generally indicates theperson or persons, publisher or agency responsible for the execution of, orowning the rights to, the negative, positive, digital file or other methodemployed from which the print, plate, transparency or object being offered forsale is created. While we may indicate in the lot description who we believe tohave been the maker, printer or creator of the object offered, the LimitedAuthenticity Warranty does not apply to any information regarding the maker,printer or creator of the print, plate, transparency or object being offered.
Updated: February 11, 2019