GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale (the “General Conditions”) apply to the sale of any artwork by the GALERIE NICOLAS BOURRIAUD company, Limited Liability company with a capital of 300,000 € headquartered at 205, rue du Faubourg Saint Honoré – 75008 PARIS, registered in the PARIS Trade and Companies Register under number 539.183.657 RCS PARIS (hereinafter “the Seller”), whether this sale takes place in its premises, remotely or off-site.
The term “Buyer” refers to any natural person or legal entity, acting in his capacity as professional or non-professional, for his own account or on behalf of a third party, purchaser of one or a few artworks (hereinafter “Artwork”) by any artist (hereinafter “Artist”).
The Seller and the Buyer are referred to as “the Parties”, collectively, or as “a Party”, individually.
These Terms and Conditions are annexed to the Invoice (and all the additional invoices to the said Invoice, taken together), which constitutes the contractual instrument of the Sale concluded between the Parties (hereinafter “the Sale”), it being specified that in the event of a contradiction between these General Terms and Conditions and the indications on the Invoice, the latter shall systematically prevail.
The Buyer and the Seller agree to be bound by these General Conditions.
The Buyer must read and understand these General Conditions before proceeding with the transaction. If the Buyer does not understand or does not agree with a clause, he shall state this clearly and discuss it with the Seller as soon as possible. By indicating his consent to the Sale in any way, the Buyer will be deemed to have read, understood and accepted the General Conditions.
However, if the Parties sign a specific sales contract outlining the terms of the artwork’s acquisition by the Buyer, this specific contract will prevail over these General Conditions.
1. SALE OF THE ARTWORK
The Seller agrees to sell the artwork to the Buyer and the Buyer agrees to purchase the artwork from the Seller subject to the compliance of each with the provisions set out in the General Conditions.
Any sale of an artwork is subject to the prior issue of a pro-forma invoice (hereinafter “the Invoice”). Any sale will only become final after full payment of the artwork’s price.
2. CONDITION OF THE ARTWORK
The Artwork is sold in the state it is in at the time of the Sale, with is possible imperfections and defects.
In this respect, it this the responsibility of the Buyer to examine the Artwork before the Sale and to ask the Seller about its characteristics and possible restoration.
No claim will be taken into account regarding usage restorations and minor accidents.
3. SELLER’S WARRANTIES AND REPRESENTATIONS
The Seller warrants that :
– he shall comply with all laws and regulations applicable to his activity;
– he has the capacity and power to carry out the said Sale;
– he is the owner of the Artwork or is authorised to sell it on behalf of the owner.
The Seller warrants to the Buyer that the information provided and mentioned on the invoice is accurate given the current knowledge.
4. BUYER’S WARRANTIES AND REPRESENTATIONS
The Buyer shall provide the Seller, for the sole needs of the latter’s administrative and regulatory procedures, with the necessary documents, certificates and information, starting with those relating to his identity and contact details.
He declares and guarantees that :
– the said documents, certificates and information are true, accurate and correct on the date of their delivery ;
– he will immediately inform the Seller of any errors or changes in the aforementioned documents, certificates and information;
– he complies with all applicable laws and regulations, including tax laws;
– pursuant the money laundering and financing of terrorism legislation, he is not commonly known by a name other than the one appearing on the invoice or, if he is, has fully communicated this name or these names to the Seller in writing;
– he has the capacity and power under the laws of his home country to enter into and complete the Sale
– he is subject to a matrimonial regime that allows him to freely and validly purchase the Artwork;
– he is acting and purchasing the Artwork in his own name or, where appropriate, jointly with any co-purchaser whose name appears on the invoice.
5. PRICE OF THE ARTWORK
The Price is the amount mentioned on the Invoice or, failing that, in any exchanges between the Parties marking their agreement on this amount.
Unless otherwise specified on the said Invoice :
– the Price is indicated in Euros and stipulated all taxes included. It does not cover any additional costs that are not expressly identified, in particular packaging and delivery costs.
– The sale is subject to VAT on the margin in accordance with Article 297A of the General Tax Code.
– Any possible additional costs identified will be subject to the common system of VAT;
Payment must be made in the currency specified on the Invoice, unless otherwise agreed in writing by the Seller.
As concerns sales involving payments in foreign currencies, the Invoice is established on the basis of the current Euro exchange rate plus 5% (to take account of market practices and exchange costs).
As the Seller is not responsible for the exchange rate risk, in the event of an upward variation between the date of issue of the invoice and effective date of payment by the Buyer, the corresponding additional cost shall be in charge of the Buyer.
The Buyer shall be responsible for the payment of all taxes arising from his acquisition and subsequent delivery of the artwork.
All payments shall therefore be free of all deductions or setoffs, in particular for or on account of any tax, levy, import, duty, fee, charge and any kind of withholding tax now or hereafter imposed by any governmental, fiscal or other authority, unless otherwise provided by law.
Therefore, if the Buyer is required to make such a deduction, he shall also pay he Seller the additional amounts needed to ensure he will ultimately collect the full amount excluding deduction.
Unless otherwise specified, payment shall be made within 15 (fifteen) days following the receipt of the invoice through following means:
-by credit card payment, except American Express, it being specified that the Seller does not accept remote card payment from abroad.
– by transfer to the bank account indicated on the Invoice or any other bank account designated by the Seller in due course;
– in cash for payments :
– up to a sum of 1,000 Euros including VAT, if the Buyer’s tax residence is in France;
– up to a sum of 15,000 Euros including VAT, if the Buyer is domiciled for tax purposes abroad and is not acting for the purposes of a professional activity.
In the event of payment deadlines granted by the Seller, any partial sums paid by the Buyer shall constitute a deposit. The payment of the balance of the acquisition price shall be made within 15 (fifteen) days following the last deposit payment.
Payment shall be deemed made on the date upon which the funds are fully at the disposal of the Seller.
In the event of delayed payment, and in accordance with article L. 441-10 of the French Commercial Code:
The interest for late payment, payable from the day following the contractual due date, will be equal to :
– the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points;
– or three times the legal interest rate, if this amount is higher than the above;
And if the Buyer is a professional, he shall also be liable to :
– a minimum fixed compensation of €40 (forty Euros) for recovery costs, excluding tax;
– an additional compensation if the actual recovery costs are higher than the above fixed amount and if the Seller provides evidence of this.
Interest will accrue daily, calculated on the basis of a 365-day year, and will be due without prejudice to the Seller’s other rights and remedies against the Buyer.
In addition to any late payment interest, the Buyer shall pay the Seller all costs incurred as a result of the late payment, including but not limited to costs associated with insurance, storage and administration of the Artwork.
8. CANCELLATION OF THE SALE
In the event of the Buyer’s slightest failure to comply with the above payment conditions, the Sale may be solved of full right, to the disadvantage of the Buyer, without prior formal notice. The Seller shall notify the Buyer of this cancellation by registered letter with acknowledgement of receipt.
The Sale may also be cancelled in the event of the Buyer failing to comply with any of his obligations set out in these General Terms and Conditions if :
– after the reception of a formal notice, sent by the Seller by registered letter with acknowledgement of receipt, asking him to execute the disputed obligation;
– the Buyer has not fully complied with his obligation within the 15 following days.
In accordance with Article 1590 of the French Civil Code :
– in the event that the Sale is cancelled due to the Buyer’s fault, the Seller shall retain any possible amounts already paid;
– in the event of the Sale being cancelled due to the Seller’s fault, excluding force majeure, the latter shall refund the Buyer twice the amount of any possible deposit.
9. RETENTION OF TITLE
ACCORDING TO ARTICLE 2367 OF THE FRENCH CIVIL CODE, THE PROPERTY OF THE ARTWORK SHALL NOT PASS TO THE BUYER UNTIL FULL PAYMENT TO THE SELLER.
10. DELIVERY OF THE ARTWORK – TRANSPORT
10.1 TERMS OF DELIVERY
The Artwork is delivered by the Seller to the Buyer :
– either by direct handover to the latter ;
– or by notice of availability on the Seller’s premises, it being specified that the Artwork will be held at the disposal of the Buyer for a period of 15 (fifteen) days following receipt of full payment of the price;
– or by delivery of the Artwork to a carrier chosen by the Seller or the Buyer at the address indicated by the latter.
Unless stipulated otherwise in the Invoice, the Buyer shall bear all third party fees and expenses relating to, inter alia, packaging, transport, installation, shipping, custom duties, taxes, fees and insurance of the Artwork for delivery to the Buyer in accordance with these general Conditions.
The period for carriage is confirmed by the Seller on the day of full payment of the price and shall only start to run from that date.
The Buyer acknowledges that the delivery date does not constitute an essential condition of the contract or, otherwise, shall inform the Seller thereof upon conclusion of the Sale. In the absence of any such information, this date does not constitute an essential condition of the contract.
In the event of late delivery :
– no compensation may be claimed by the Buyer;
– except in the event the delivery date constitutes an essential condition, the Buyer shall give the Seller formal notice to meet his obligation by registered letter with acknowledgement of receipt, in accordance with Article L. 216-6 of the Consumer Code.
If the Artwork is not delivered within a period of 1 (one) month following receipt of this letter, the Buyer may notify the cancellation of the Sale by registered letter with acknowledgement of receipt.
If the Buyer receives the artwork before the Seller receives his notification, the Sale shall not be cancelled.
In case of cancellation of the Sale under the above-mentioned conditions, the Seller will return the entire amount of the Price paid in accordance with article L. 216-7 of the French Consumer Code.
If the Buyer receives the Artwork after the cancellation of the Sale, he will return it within 8 (eight) days. In this case, the reimbursement of the amount paid will only take place after the Seller has received the Artwork.
10.2 TRANSFER OF RISK
The risk of loss or damage to the Artwork shall be transferred to the Buyer at the earlier of the following dates:
– direct handover in the gallery ;
– delivery by the Seller to the chosen carrier;
– at the end of a period of 30 days following delivery of the Invoice to the Buyer.
In the event of transport provided by a third party chosen by the Seller, the carrier is, as required by Article L. 133-1 of the Commercial Code, liable for the loss and/or damage.
In such a case, the Buyer shall only give discharge to the carrier and take delivery of the Artwork after having checked its condition. In the event of a damage, other than inherent to the item or due to force majeure, the Buyer must refuse to accept the delivery and inform the Seller forthwith in order to allow the latter to exercise his recourse against his carrier.
11. EXPORT OF CULTURAL PROPERTY
The export from France or importation into another country may be subject to obtaining
one or a few administrative authorisation(s).
Unless they have been obtained by the Seller before the Sale, the Seller may assist
the Buyer, if he so requests, with a view to obtain the necessary administrative authorisation(s), without however being responsible for any refusal or delay
12. INTELLECTUAL PROPERTY
The sole physical property of the “Artwork” is transferred to the Buyer, subject to the full payment of Price.
The Sale does by no means grant assignment of any intellectual property right.
The Seller shall not give any warrantee regarding the possible intellectual property rights possibly attached to the Artwork.
13. LIMITATION OF LIABILITY
In any case, the Seller’s liability to the Buyer for any claim related in any way to the
Sale, for any cause (including, but not limited to, negligence, error, omission, fault or shortcomings on the part of the Seller) shall be limited to the amount of the price.
14. RIGHT OF WITHDRAWAL
The Buyer is informed that :
– if he is qualified as “Consumer” within the meaning of the Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (hereinafter the “Directive”);
– and if the Sale is concluded by a “distance contract” or by an “off-premises contract” within the meaning of the Directive or any applicable local legislation;
– he has 14 (fourteen) days from the day on which he, or a third party designated by him (other than the carrier), acquires physical possession of the “Artwork”, to withdraw from the Sale, without giving any reason;
In order to exercise his right of withdrawal, the Buyer “Consumer” shall inform the Seller, before the expiry of the withdrawal period, of his decision to withdraw from the Sale by sending a statement at the email address : firstname.lastname@example.org clearly expressing his intention to make use of his right of withdrawal and mentioning the identification of the “Artwork”.
The Buyer “Consumer” is required to return the “Artwork” to the Seller or to any person authorised by the latter, as soon as possible, within one of the 14 (fourteen) days following the sending of his decision to withdraw.
Upon receipt of the “Artwork” by the Seller, the latter will refund any payment received, after deducting any possible direct costs incurred by the return of the “Artwork”, which remain at the charge of the Buyer.
The Buyer “Consumer” will be held responsible for any depreciation in the value of the “Artwork” resulting from the handling of the “Artwork” by the Buyer.
The fact that one Party does not avail itself of, or exercise the rights or remedies conferred on him by these General Terms and Conditions does not constitute a waiver of the said rights or remedies.
16. FORCE MAJEURE
Notwithstanding the above, neither Party shall be liable for non-fulfilment or delay in the performance of any of his obligation, if this is due to force majeure, in accordance with Article 1218 of the Civil Code (“Force Majeure”).
Under these circumstances, the enforcement of the affected obligation is simply suspended for the duration of the force majeure.
Unless otherwise agreed by the parties, if the suspension exceeds a period of 15 (fifteen)days, the Party in whose favour the obligation has not been fulfilled is entitled by full rights to cancel the Sale without the other Party being entitled to claim damages.
17. PANDEMIC AND EPIDEMIC
Unless otherwise agreed by the Parties, in the event of difficulties of any kind resulting from pandemic or epidemic and, in particular, Covid-19, as well as any measures taken as a result, the additional costs related to the delivery of the Artwork will be borne by the Buyer and shall be re-invoiced to him.
18. MISCELLANEOUS PROVISIONS
References to any document or agreement shall be interpreted as references to the document or agreement in force at the time of the Sale and as amended, modified or completed by mutual agreement of the Parties.
The invalidity or unenforceability of any provision of these General Conditions shall not affect the validity of the others.
19. DATA PROTECTION
The Seller processes the Buyer’s personal data for the following purposes:
– compliance with his legal and regulatory obligations, in particular as regards the fight against money laundering and invoicing ;
– proper execution of these General Conditions (payment guarantee, taxation, delivery, etc.);
– integration of the Buyer’s data in his customer file;
– and sending the Buyer newsletters regarding his own activities and/or invitations to events he organises, on the basis of a legitimate interest in sending such information/invitations.
In accordance with the applicable regulation, the Buyer has the right to access, rectification, portability and erasing of these data, or to limit the processing thereof. The Buyer may also, for legitimate reasons, oppose the processing of data concerning him.
To this end, the Buyer may, subject to a valid proof of identity, exercise his rights by contacting the Seller:
-by email to the following address: email@example.com
or by letter, at the address appearing in the letterhead of these General Conditions.
20. AMICABLE SETTLEMENT OF DISPUTES
The Parties agree that, in the event of a dispute, they will give priority to seeking an amicable settlement of this dispute.
Thus, in the event of a complaint, the Buyer shall address first and foremost the Seller:
– by telephone: (non surcharged number from a fixed line in metropolitan France), from Monday to Saturday, excluding public holidays or nonworking days, from 11am to 7pm -01 42 61 31 47
– by e-mail firstname.lastname@example.org
– or by post at the address appearing in the letterhead of these General Conditions .
The Seller undertakes to provide an initial response within a maximum period of 2 (two) months.
In the absence of amicable discussions or in the event of their failure, in accordance with Articles L. 612-1 et seq. of the Consumer Code, the Buyer having the status of “Consumer” within the meaning of Directive 2011/83/EU may then submit his dispute to the mediation service below:
Centre de médiation et d’arbitrage de Paris (CMAP)
Service Médiation de la consommation
39 avenue Franklin D. Roosevelt 75008 PARIS
@ : email@example.com
The Parties remain free to accept or refuse recourse to mediation and, in the event of recourse to mediation, to accept or refuse the solution proposed by the mediator.
In the event of failure of the above amicable attempts, each of the Parties may refer any dispute to the competent Court.
The Parties agree in advance that, in the event of legal or arbitration proceedings relating to the execution of the Sale, the successful Party shall be entitled, in addition to the sentences pronounced in his favour, to claim to its benefit, the reimbursement of all costs and expenses incurred by the said litigation(in particular all legal fees, expert witness fees, costs related to the dispute, costs of the arbitrator, of the proceedings or otherwise) and which will have not yet been covered.
The Party in whose favour the arbitrator or court rules the central issue in the dispute shall be deemed to be “successful”.
22. APPLICABLE LAW AND JURISDICTION
The Parties agree that the Sale and the present General Conditions are governed by French law.
They also grant jurisdiction to the courts of Paris for any claim or dispute relating to the validity, execution or interpretation of the said Sale and/or of any service rendered in the context of this Sale.