Allied Omni Media, LLC, a Georgia limited liability company, d/b/a AVC ("AVC"), and WSN, LLC, a Georgia limited liability company, d/b/a The Fine Art Auction (GA Lic. # AU-C003006) (“The Fine Art Auction”, or the “Auctioneer”, and collectively with AVC, as “us”, “we”, “our”) hereby provide the following terms and conditions (the “Terms and Conditions”) to apply to all auctions conducted by The Fine Art Auction, including all “buy-now” transactions with The Fine Art Auction (each such auction and “buy-now” transaction referred to as an “Auction” and collectively, the “Auctions”) and all transactions on ACV's home shopping platform (the "Home Shopping Platform"). By registering with AVC, placing a bid or “buy-now” order at an Auction, or placing an order on the Home Shopping Platform each entity or person (and its authorized signatory in the case of an entity) (collectively, “You”) agree that You have read, understood and agree to be bound by the Terms and Conditions and our Privacy Policy, as each may be amended by us and made available on our websites from time to time. The Terms and Conditions constitute the sole terms and conditions under which we will offer for sale and sell items via Auction, including on a “buy-now” basis, or the Home Shopping Platform. Announcements and corrections by the Auctioneer during any Auction supersede the Terms and Conditions. Our Privacy Policy, available at https://shopavcaustralia.com/AVC-policies.php is hereby incorporated by reference.
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THE TERMS AND CONDITIONS INCLUDE A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE AUCTION, THE HOME SHOPPING PLATFORM, YOUR PURCHASES, THE ENFORCEMENT OF THE TERMS AND CONDITIONS AND YOUR RELATIONSHIP WITH US TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN PROCEED IN COURT. THE DISPUTES/ARBITRATION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION OR GROUP OF ACTIONS. THIS AGREEMENT ALSO CONTAINS A JURY WAIVER.
Registration is required for all entities and persons wishing to (i) Bid (“Bidders”) and participate in any Auction conducted by The Fine Art Auction, including “buy-now” orders, or (ii) purchase any item on the Home Shopping Platform. Registration may be completed by phone or online. Once registered You will establish an account with AVC (“Member Account”). Special events may require a separate registration.
(a) Information Required. To register, You are required to submit Your name, physical address, telephone number and email address. You hereby represent that all information You submit to us is truthful and accurate in all respects. By submitting Your information, You consent to have Your personal information processed and maintained by AVC (and its affiliates) in the United States as provided in our Privacy Policy. AVC HAS IMPLEMENTED COMMERCIALLY REASONABLE TECHNICAL AND ORGANIZATIONAL MEASURES DESIGNED TO SECURE YOUR PERSONAL INFORMATION FROM ACCIDENTAL LOSS AND FROM UNAUTHORIZED ACCESS, USE, ALTERATION OR DISCLOSURE. HOWEVER, WE CANNOT GUARANTEE THAT UNAUTHORIZED PARTIES WILL NEVER BE ABLE TO DEFEAT THOSE MEASURES OR ACCESS OR USE YOUR PERSONAL INFORMATION. YOU ACCEPT THIS RISK AND AGREE TO PROVIDE YOUR PERSONAL INFORMATION AT YOUR OWN RISK.
(b) Verification. For verification purposes, You may be required to submit a copy of Your official government-issued identification (driver’s license / passport / state identification card).
(c) Minors. Auction bids, “buy-now” orders, or Home Shopping Platform orders will not be accepted from those persons under eighteen (18) years of age.
(d) Approval of Registration. We are under no obligation to accept Your application for registration. We, in our sole and absolute discretion, reserve the right to approve or reject Bidders for any Auction at any time.
(e) Term of Registration. Your registration is effective until cancelled by us, for any reason in our sole discretion, effective immediately on written notice of the same. You may cancel Your registration at any time, provided You will remain responsible for all accrued obligations.
Additional terms and conditions, available on our website(s) or websites of our vendors, may govern the Home Shopping Platform.
Each Auction conducted is of a designated set of items (each a “Lot”) on a designated date or dates, subject to Anglo-Dutch Auction Terms (as defined below). Lots may be owned and provided by The Fine Art Auction or a third party that retains The Fine Art Auction to sell property on its behalf (each such party, including The Fine Art Auction, a “Seller”). We will provide the pertinent information for each Auction, including: the date(s), start time of the Auction, each Lot to be sold, and the location, as may be applicable. Auctions may be conducted in-person, broadcast, or streamed online (collectively, the “Service”), or via some or all of these methods. Bidders may submit a binding offer to purchase a Lot at a specified price (a “Bid”) in an Auction.
(a) Placement. When a Lot at an Auction goes live, You are free to place Bids on such Lot until the individual conducting the Auction (the “Auctioneer”) determines that bidding on such Lot has closed.
(b) Notifications. You are responsible to monitor the Lot(s) for which You placed Bid(s) to determine whether and when You are outbid. If You are the winning Bidder for a given Lot, The Fine Art Auction will send you confirmation.
(c) Bid Conditions. The Fine Art Auction reserves the right to accept or decline any Bid for any reason or no reason. Bids must be for an entire Lot. Each Lot constitutes a separate sale. All Bids are per Lot unless otherwise announced by the Auctioneer. All winning Bids are subject to a Buyer’s Premium and other fees (as defined below). Lots will be sold in their numbered sequence unless the Auctioneer directs otherwise. The Fine Art Auction may cancel any Lot and have it removed from an Auction prior to acceptance of a winning Bid, for any reason or no reason. In the event a Lot is removed from an Auction, notice will be provided In such instance of Lot removal from an Auction, any Bids previously placed on such Lot prior to its removal from the Auction shall be cancelled, and The Fine Art Auction will not receive any further Bids on such Lot.
(d) Purchase Obligations. In connection with making Bids, Bidders agree that the registered and approved Bidder with the highest Bid at the close of the Auction will be obligated to purchase the Lot; Bidders placing a “buy-now” order will be obligated to purchase the Lot at the “buy-now” price. BY BIDDING ON ANY LOT, YOU AGREE TO PURCHASE THE LOT AT THE PRICE YOU HAVE BID. YOU AGREE THAT SHOULD YOU BID ON A LOT AND THAT BID IS THE WINNING BID, THAT YOU ARE BOUND TO PAY THE FINE ART AUCTION THE WINNING BID AMOUNT FOR THE LOT. ALL SALES ARE SUBJECT TO THE CANCELLATION AND RETURN POLICY SET FORTH BELOW. You further acknowledge and agree that any winning Bid You submit for each Lot is subject to: (i) additional fees, including the Buyer’s Premium and Online Service Fee (if applicable), and (ii) additional costs, including taxes, shipping (if applicable), storage (if applicable), and customs and/or other duties (if applicable), and that You are obligated to pay such fees and costs in connection with Your winning Bid(s) or “buy-now” orders.
(e) Conduct. Bidders are strictly prohibited from colluding, pooling, or agreeing with another Bidder to pay less than the fair value for Lot(s), or with a Seller to effectuate a non-sale of any Lot, engaging in conduct to inhibit bidding, entering into a private sale for any Lot, or utilizing any Auction to obtain sales for non-selling Lots subsequent to an Auction.
(f) Disputes Between Bidders. The Auctioneer will have final discretion in the event that any dispute should arise between Bidders. The Auctioneer will determine the successful Bidder, cancel the sale, or re-offer and resell the Lot or Lots in dispute. If any dispute arises our sale record is conclusive and binding on all persons.
(g) Telephone Bids. The Fine Art Auction will accept telephone bids. We take no responsibility for any errors or omissions in connection with the same.
(h) Broadcast and Online Access. We rely on third party service providers to broadcast and stream the Auctions online. The Broadcast and Online Services are provided “as-is”. High speed Internet access is required to access the Online Service effectively. The Broadcast and Online Services are subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.
(i) Pricing. All Lot pricing is listed in United States Dollars unless otherwise stated at the Auction. We may offer certain programs, tools, and site experiences of particular interest to international users, such as estimated local currency conversion and international shipping calculation tools, but these are offered for convenience only without representation or warranty with respect to the accuracy of the same.
(j) Reserve. All of the Lots offered at Auction are subject to a confidential minimum price acceptable to the Seller at which the Lot will be sold (the “Reserve”), unless otherwise stated in the Catalogue, online, by the Auctioneer or posted at a live event. The Seller may lower the Reserve at any time in its discretion. The Fine Art Auction is not obligated to sell any Lot unless the applicable Reserve is met. A Lot or Lots may be withdrawn from an Auction if there is no Bid equal to or above the applicable Reserve. THE FINE ART AUCTION RESERVES THE RIGHT TO AND THE AUCTIONEER MAY OPEN ANY LOT BY BIDDING ON BEHALF OF THE SELLER (WHICH MAY BE THE FINE ART AUCTION) AND MAY BID UP TO THE AMOUNT OF THE APPLICABLE RESERVE, BY PLACING SUCCESSIVE OR CONSECUTIVE BIDS FOR A LOT OR BIDS IN RESPONSE TO OTHER BIDDERS. Online sales may do the same by employing the use of a starting Bid which will commence bidding at or below the applicable Reserve.
(k) Anglo-Dutch Auction Terms. A Lot may consist of a print or a reproduction (each is referred to as an “impression”). Multiple impressions printed from the same matrix or digital image are typically referred to as an edition. An edition may be limited or open. At any time prior to the close of an Auction for any Lot, a Seller may authorize The Fine Art Auction to sell one or more additional impressions of such first Lot (each an “Additional Lot”), subject to the same Reserve, or at a “buy-now” price equal to the then-highest Bid for such first Lot. Subject to the Seller’s authorization, if an Additional Lot is sold at a price that is lower than the then-highest Bid for such first Lot, the winning Bid for the first Lot will be reduced to match the lowest price paid for an Additional Lot prior to the close of the Auction for the first Lot, plus applicable fees as provided herein. No price adjustment will be made based on the sale of any impression sold at a subsequent Auction or subsequent sale on a “buy-now” basis.
At the close of the Auction for each Lot, the highest Bid for each Lot (or a Bidder placing a “buy-now” order) will be considered the “Hammer Price”, and the successful Bidder shall be informed (the “Winning Bidder” or the “Purchaser”). The Winning Bidder is obligated to pay to The Fine Art Auction the Hammer Price, Buyer’s Premium, and all applicable taxes, plus shipping costs (if applicable), insurance costs while in transit, Online Service Fee (if the Winning Bidder placed the Bid online via the Service) and any applicable customs and/or other duties (such amounts collectively referred to as, the “Total Purchase Price”). Upon conclusion of the Auction, we will provide the Winning Bidder with a statement of the Total Purchase Price.
(a) Risk of Loss. Upon establishment of the Hammer Price for each Lot (the “Sale”), the Winning Bidder immediately thereafter assumes full responsibility for all risk of loss or damage (including, without limitation, liability for or damage to frames or glass covering prints, paintings, photos, or other works) and will immediately pay the Total Purchase Price or such part thereof as The Fine Art Auction may require if agreed to in advance of the Auction. Lots will be released to You (or the Shipper, as applicable) upon our receipt of payment of the Total Purchase Price in full from You.
(b) Buyer’s Premium. Winning Bidders agree that in addition to the Hammer Price, each Lot will be subject to an additional charge on the Hammer Price as part of the Total Purchase Price in an amount equal to Fifteen Percent (15%) (the “Buyer’s Premium”). Example: The Hammer Price on a Lot is $1,000. The Winning Bidder would pay a Buyer’s Premium equal to $150 on such Lot.
(c) Online Service Fee. For all Lots where the Winning Bid is submitted online via the Service, an additional Three Percent (3%) of the Hammer Price (the “Online Service Fee”) will be added to the Buyer’s Premium.
(d) Taxes. The Winning Bidder agrees that it is responsible for the payment of any and all applicable taxes due in connection with the purchase and delivery of such Lot, including but not limited to sales tax, use tax, value-added tax (“VAT”), customs and/or other duties or government-imposed artist royalty or the like, to the extent applicable to You.
(e) Shipping. All Lots will be shipped from the United States, unless otherwise stated by Us. The Winning Bidder is responsible for all costs to ship each Lot including in-transit insurance costs. Shipping is not included in the Hammer Price of Your Lot. We will contract with an outside shipping company (“Shipper”), to ship Your Lot to You. Please allow up to two (2) weeks for the delivery of Your Lot to You; delivery time is dependent upon the size of the Auction, the destination address of the Lot, the number of Lots purchased by You and the method of transportation to deliver the Lot. We are not responsible for returned or undeliverable shipments. FOR LOTS SHIPPED INTERNATIONALLY, YOU ARE THE “IMPORTER OF RECORD”, THE “DECLARANT” AND ARE OBLIGATED TO REGISTER AND PAY VAT, CUSTOMS AND/OR OTHER DUTIES, AS APPLICABLE. We may collect Your estimated VAT, customs and/or other duties payments due (in advance) at the time of purchase and pay same to the Shipper who will handle remittances on Your behalf as a convenience. We will provide You with a customs document detailing the value of items purchased. We are not responsible if there are any delays in customs. You are solely responsible for compliance with all laws and regulations applicable to international export, purchases, import and shipments of goods. You understand that the shipment of Lots internationally is subject to United States export controls and trade and economic sanctions laws, and agree to comply with all such laws and regulations, including the regulations maintained by the United States Department of Commerce, the United States Treasury Department’s Office of Foreign Assets Control and all other governmental authorities.
(f) Invoices and Payments. All invoices must be paid at the close of the Auction, unless we have agreed in writing to provide payment terms or an extended period of time for payment to You. Payments. We accept payment by cashier’s check, wire transfer, American Express, Mastercard, Visa, and Discover. Credit Card Authorization. Bidder authorizes AVC (and its third-party payment processor) to charge Bidder’s credit card provided at the close of the Auction. Processing fees for credit card payments may apply. Lot Rights. In the event we have agreed in writing to provide payment terms or an extended period of time for payment to You, You acknowledge and agree that You shall have no right, title, or interest in and to any property purchased by You until all amounts owed by You are paid in full. If You fail to comply with the terms of the payment plan or extended payment period, upon Your default, The Fine Art Auction shall have the unequivocal right, at its sole discretion, to sell some or all of the property on which You were the Winning Bidder, and to apply the proceeds toward the balance of any monies owed by You to The Fine Art Auction. If the monies received through the sale of the items do not meet Your outstanding obligations, The Fine Art Auction shall have the right to pursue any and all remedies available under the law against You pursuant to the provisions set forth herein. If the monies received through the sale of the items exceed Your outstanding obligations, the excess, minus any fees or costs incurred by The Fine Art Auction in connection with and arising out of the sale of the properties, shall be refunded to You. Late Payment Fees. Commencing with the fifth (5th) day following the sale of each Lot, payments not received by us will incur a late charge in an amount equal to one percent (1.00%) per month (or the highest rate allowable by law, whichever is lower) on the outstanding Total Purchase Price.
(g) Cancellation & Return Policy. You may return any Lot purchased at Auction or items through the Home Shopping Platform and receive a refund less the Buyer's Premium and shipping and handling fees and costs (including original shipping, return shipping, VAT, customs and/or other duties, and other government-imposed fees, as applicable). To return an item, You must first receive an RMA number from AVC's Customer Service Department at customerservice@shopavcaustralia.com within 7 days of Your receipt of the Lot (or item) at issue, Monday-Friday, 10:30am-6pm Eastern Time. Lots (or items) must be returned and received by AVC within 7 days from Your receipt of the applicable RMA number. Lots (or items) must be returned in original condition with tags attached and certificates unless purchased separately. Lots (or items) are not returnable if tags are removed. You may be charged for any COA (as defined below) not returned. The RMA number must be written on the outside of the package or AVC will not accept delivery of the package. You are responsible for insuring returned Lots (or items). All custom work (such as sizing, mounting and appraisals) are sold on an "ALL SALES ARE FINAL" basis and are non-refundable. We are not responsible for any damage through misuse or for damage to Lots (or items) in transit. RMA numbers do not guarantee refunds; all refunds will be processed only after thorough inspection of the Lot by The Fine Art Auction or the item by the Home Shopping Platform vendor, as applicable.
(h) Defaults and Remedies. If the Winning Bidder does not comply with the Auction Terms and Conditions, such Winning Bidder will be in default. In addition to any and all other remedies available to us and the Seller by law and at equity, including, without limitation, the right to specific performance and to hold the Winning Bidder liable for the Total Purchase Price, including all fees, charges and expenses more fully set forth herein, we, at our option, may: (a) cancel the sale of the subject Lot, or any other Lots sold to the defaulting Purchaser at the same or any other Auction, retaining as liquidated damages all payments made by the Purchaser; (b) resell any purchased Lots, whether at public auction or by private sale; or (c) effect any combination thereof. In any case and notwithstanding anything to the contrary herein, in the event the Winning Bidder defaults, it shall be liable for any deficiency, any and all costs, handling charges, late charges, expenses of both sales, commissions due any Auctioneers on both sales, our attorney’s fees, costs and expenses, collection fees and incidental damages. We may, in our sole discretion, apply any proceeds of sale then due or thereafter becoming due to the Purchaser from us or any affiliate, or any payment made by the Purchaser to us or any affiliate, whether or not intended to reduce the Purchaser’s obligations with respect to the unpaid Lot or Lots, to the deficiency and any other amounts due to us or any affiliate. In addition, a defaulting Purchaser will be deemed to have granted and assigned to us and our affiliates, a continuing security interest of first priority in any property or money owing to such Purchaser in our possession or in the possession of any of our affiliates, and we may retain and apply such property or money as collateral security for the obligations due to us or to any affiliate. Payment will not be deemed to have been made in full until we have collected good funds. In the event the Purchaser fails to pay any or all of the Total Purchase Price for any Lot and we elect to pay the Seller any portion of the sale proceeds, the Purchaser acknowledges that we shall have all of the rights of the Seller to pursue the Purchaser for any amounts paid to the Seller, whether at law, in equity, or under the Terms and Conditions.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVC, THE FINE ART AUCTION OR THEIR AFFILIATES, OR THE MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF EACH OR THE AUCTIONEERS (COLLECTIVELY, THE “AVC PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THROUGHOUT ALL AUCTIONS, OR SALES CONDUCTED ON THE HOME SHOPPING PLATFORM, AVC PARTIES ARE NOT RESPONSIBLE FOR THE CONDUCT (WHETHER ONLINE OR OFFLINE) OF ANY BIDDER, ANY OTHER PURCHASER OR NON-COMPANY PERSONNEL.
THE AVC PARTIES’ MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE TERMS AND CONDITIONS AND YOUR RELATIONSHIP WITH US, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE GREATER OF $250 OR THE TOTAL PURCHASE PRICE PAID FOR THE LOT OR ITEM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES AGREED UPON BETWEEN YOU AND US ARE BASED IN PART ON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ANY ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless AVC and The Fine Art Auction and their affiliates, and the members, officers, directors, employees, contractors, agents, and representatives of each and the Auctioneers, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from Your violation of any term or condition in the Terms and Conditions, including without limitation, (i) Your breach of any of the representations and warranties herein; (ii) Your violation of any law, rule or regulation of any State or of the United States, or any other country.
(a) Warranty; Disclaimers. Subject to the terms and conditions thereof, except for the Authenticity Warranty (as defined below), all Lots are sold “as-is”. We and the Seller make no representation or warranty, express or implied, as to the merchantability, fitness for a particular purpose or intended use, the correctness of descriptions, size, quality, value, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition, history, literature or historical relevance of any Lot. No oral or written statements made in a Catalogue or online description, advertisement, condition report, bill of sale, invoice, announcement or elsewhere, by the Auctioneer or any of our employees (or of our affiliates) or any Seller shall be considered a representation or warranty by or attributable to us or any Seller. We and the Seller make no representation, warranty, express or implied, as to whether the Purchaser acquires any intellectual property rights, including but not limited to, any reproduction rights of any property. We and the Seller are not responsible for errors and omissions in a Catalogue, online descriptions or any other supplemental material whether oral or written.
(b) Evaluation; Item Descriptions. All descriptions, photographs, illustrations, and terminology used in a Catalog, online descriptions, bill of sale, invoice, or anywhere else, represent a good faith effort made by us to fairly represent the Lots; they are statements of opinion only. All such statements by us are not representations or warranties and Bidder agrees and acknowledges that it shall not rely on them in determining whether or not to Bid or for what price. Bidders are responsible to inspect and evaluate each Lot prior to bidding.
(c) Catalogues. While The Fine Art Auction customarily produces printed Catalogues of all Lots available for a live event Auction and online descriptions for broadcast and streamed Auctions, such Catalogues and online descriptions are for illustrative purposes only. Descriptions of Lots therein are not comprehensive and may contain errors. We do not represent or warrant any aspect of content in the Catalogues or online descriptions other than the Authenticity of Lots as provided below.
(a) Authenticity. A Lot described with the name(s) or recognized designation of an artist, without qualification, is, in The Fine Art Auction’s opinion a work by or of the artist in whole or in part; subject to and to the extent such information is explicitly stated in the Certificate of Authenticity (“COA”) that accompanies each Lot sold to the exclusion of all other information (“Authenticity”).
(b) Authenticity Warranty. We make no representations or warranties to information not explicitly contained in COA. Subject to the exclusions listed below, The Fine Art Auction warrants the Authenticity of a Lot for a period of one (1) year from the date of sale and only to the original Purchaser on record at the Auction. If it is determined to our satisfaction that the Authenticity is incorrect, the sale will be rescinded if the Lot is returned to us in the same condition in which it was at the time of sale. We reserve the right to require the Purchaser to obtain, at the Purchaser’s expense, the opinion of an expert in the field, mutually acceptable to us and the Purchaser, before we agree to rescind the sale under the warranty. This warranty is not assignable and applies only to the original Purchaser on record with The Fine Art Auction. This warranty does not transfer to any subsequent owners of any purchased property (this includes without limitation, heirs, successors, beneficiaries or assigns).
(c) Remedies. Your sole remedy is rescission; such remedy is exclusive and in lieu of any other remedy available at law, or in equity.
(d) Exclusions. Exclusions will be made and the forgoing warranty does not apply to Authenticity which on the date of sale was in accordance with the then generally accepted opinion of scholars and specialists, or the identification of periods or dates of execution which may be proven inaccurate by means of scientific processes not generally accepted for use until after publication of the Catalogue or online description, or which were unreasonably expensive or impractical or commercially unreasonable to employ in our sole discretion.
Intellectual Property Notice: Each Purchaser acknowledges and agrees that by acquiring any property, (i) Purchaser will not acquire any Intellectual Property Rights, including, without limitation, copyright or similar rights, whatsoever to such property, and (ii) Purchaser will not in any way reproduce, distribute or create derivative works based upon or derived from the property or any Intellectual Property Rights embodied in the property or cause anyone else to do so.
(a) Definition. “Intellectual Property Right” means any patent, copyright, trade or service mark, trade dress, trade name, database right, goodwill, logo, trade secret right, or any other intellectual property right or proprietary information right, in each case whether registered or unregistered, and whether arising in any jurisdiction, including without limitation all rights of registrations, applications, and renewals thereof and causes of action for infringement or misappropriation related to any of the foregoing.
(b) Content. The Auction, the Service, and all materials, including, without limitation, software, images, text, graphics, illustrations, logos, catalogues, condition reports, patents, trademarks, service marks, copy- rights, photographs, audio, videos and music (the “Content”), and all Intellectual Property Rights related thereto, are the exclusive property of AVC, The Fine Art Auction and its licensors. Except as explicitly provided herein, nothing herein shall be deemed to create a license in or under any such Intellectual Property Rights, and You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content made available to You by us orally or in writing or through the Service regardless of form of media. Use of the content for any purpose not expressly permitted by the Terms and Conditions is strictly prohibited.
(c) Data. We own the individual and aggregate, statistical, and sales data related to, derived from, and concerning the Auctions and the Home Shopping Platform and reserve all Intellectual Property Rights to utilize such data for any lawful purpose subject and pursuant to our Privacy Policy. You consent to our Privacy Policy and our use of data as described therein. (d) Ideas and Comments. You may choose to, or we may invite You to, submit comments or ideas about our Auctions, including without limitation about how to improve our operations, our Service, and/or our products (“Ideas”). By submitting any Idea, You agree that Your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to You. You acknowledge that, by acceptance of your Idea submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by us or our employees, or obtained from sources other than You.
You agree to resolve all disputes, controversies, and claims that have arisen or that may arise between us relating in any way to Your use of or access to the Service, Your use of or access to the Home Shopping Platform, Your participation in any Auction, Your purchase of any Lot, Your order of any item on the Home Shopping Platform, any interpretation, validity, breach, enforcement, or termination of the Terms and Conditions, as may be amended, or otherwise relating to AVC, The Fine Art Auction or any AVC Party, or Your relationship with us in any way (collectively, “Covered Matters”) in accordance with the provisions set forth in this Section.
(a) Informal Resolution. If You have any dispute with us, including with respect to any Covered Matter, You agree that before taking any formal action, You will contact us at customerservice@shopavcaustralia.com provide a brief, written description of the dispute and Your contact information (including Your username, if Your dispute relates to a Member Account) and allow forty-five (45) days to pass, during which we will attempt to reach an amicable resolution of Your issue.
(b) Arbitration. You agree that all disputes, claims or controversies arising out of, relating to, or connected with any Covered Matter against any AVC Party not resolved through Informal Resolution pursuant to subparagraph (a) above must be asserted by You individually in a final and binding arbitration to be administered by JAMS in Gwinnett County, Georgia pursuant to the JAMS comprehensive Arbitration Rules and Procedures. The arbitration shall be conducted before a single JAMS arbitrator who is a retired Georgia or United States Federal Judge or Justice. The arbitrator shall strictly apply Georgia substantive law and the Georgia rules of evidence. BY AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU HAVE TO A COURT OR JURY TRIAL. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the Terms and Conditions, including, any claim that all or any part of the Terms and Conditions is void or voidable or that a particular claim is subject to arbitration. Judgment on the award rendered by the arbitrator may be entered in any Court of competent jurisdiction located in Gwinnett County, Georgia.
(c) Award. You agree and acknowledge that in any award to be granted by the Arbitrator, Your rights and remedies against us or any other party related to any Covered Matter, including the Auction, the Service, and the Home Shopping Platform shall be limited to an action at law for money damages, and You hereby waive all other rights and remedies You may have at law or in equity (including, without limitation, injunctive relief, rescission, cancellation, and termination of Your agreement and the Terms and Conditions or the right to enjoin or restrain the advertisement, promotion, marketing or exploitation by AVC, The Fine Art Auction or any third party in connection with the Auction or the Home Shopping Platform and/or any rights or activities hereunder in any and all manner of media whatsoever, whether now known or hereafter devised). For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different registered members, but is bound by rulings in prior arbitrations involving You to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MEMBERS.
(d) Exceptions. Notwithstanding the foregoing, any claim of $500 or less may a resolved in small claims court in Gwinnet County, Georgia so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
(e) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by JAMS rules, unless otherwise stated in this agreement to arbitrate. The prevailing party shall be entitled to an award of all attorneys’ fees, costs and expenses incurred by it in connection with the dispute. “attorneys’ fees and expenses” includes, without limitation, paralegals’ fees and expenses, attorneys’ consultants’ fees and expenses, expert witness’ fees and expenses, and all other expenses incurred by the prevailing party or its attorneys in the course of their representation of the prevailing party in anticipation of and during the course of the arbitration, whether or not otherwise recoverable as “attorneys’ fees” or as “costs” under Georgia law; and the same may be sought and awarded in accordance with Georgia procedure as pertaining to an award of contractual attorneys’ fees.
(f) Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Terms and Conditions to the contrary, the parties agree that if we make any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against any AVC Party prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and applicable AVC Party. If You do not agree to these amended terms, You may close Your account within thirty (30) days of the posting or notification and You will not be bound by the amended terms.
(g) Forum for Legal Disputes. Unless the parties agree otherwise, in the event that the agreement to arbitrate above is found not to apply to You or to a particular claim or dispute, either as a result of Your decision to opt-out of the agreement to arbitrate, as a result of a decision by the arbitrator or a Court order or because of an election pursuant to subparagraph (d) above, You agree that any claim, controversy, or dispute that has arisen or may arise between you and any AVC Party related to any Covered Matter must be filed and resolved exclusively by a state, federal, or small claims court located in Gwinnett County, Georgia. The parties hereby irrevocably agree to submit to the exclusive personal jurisdiction of the courts located within Gwinnett County, Georgia for the purpose of litigating all such claims or disputes.
(h) Opt-Out. IF YOU ARE A REGISTERING AS A NEW MEMBER, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION (“OPT-OUT”) BY EMAILING US AN OPT-OUT NOTICE TO at CUSTOMERSERVICE@SHOPAVCAUSTRALIA.COM (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THESE TERMS FOR THE FIRST TIME. IF YOU ARE NOT A NEW MEMBER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.
(i) Procedure. In order to opt-out, You must email Your name, complete address (including street address, city, state, and zip code), and email address(es) associated with Your Member Account(s) to which the opt-out applies and an unaltered digital image of a valid driver’s license or valid government issued photo ID which matches the name on Your Member Account to: at customerservice@shopavcaustralia.com. This procedure is the only way You can opt out of the agreement to arbitrate. If You opt-out of the agreement to arbitrate, all other parts of these Auction Terms and Conditions and its Disputes Section will continue to apply to You. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that You may have with us.
(j) Waiver. BY AGREEING TO THE TERMS AND CONDITIONS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AND AS PROVIDED ABOVE), A JURY TRIAL, OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES.
(k) Statute of Limitations and Waiver of Claims. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE, SERVICE, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER WAIVED AND BARRED.
(a) Governing Law. All Auctions and all transactions on the Home Shopping Platform and the Terms and Conditions will be governed by and construed in accordance with the laws of the State of Georgia and the applicable federal laws of the United States of America. Georgia conflicts of law rules shall apply.
(b) Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Terms and Conditions due to any cause beyond its reasonable control, including acts of war, acts of god, earthquake, flood, weather conditions, embargo, riot, pandemic, epidemic, endemic, acts of terrorism, acts or omissions of vendors or suppliers, equipment failures, sabotage, labor shortage or dispute, governmental recommendation, mandate or act, failure of the Internet or other acts beyond such party’s reasonable control, provided that the delayed party: (i) gives the other party reasonable notice of such cause; and (ii) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
(c) Counterparts. In addition to those accepting The Terms and Conditions by their actions as provided above, The Terms and Conditions may be accepted and executed in any number of counterparts and electronically, each of which shall be an original but all of which together shall constitute one and the same instrument.
(d) Entire Agreement. The Terms and Conditions, including Our Privacy Policy which is incorporated by reference, contains the entire understanding of the parties in respect of its subject matter and supersedes all prior agreements and understandings (oral or written) between the parties with respect to such subject matter.
(e) Modifications. Any modification, amendment, or addendum to the Terms and Conditions must be in writing and either signed by us or posted on our website(s).
(f) Assignment. You may not assign the Terms and Conditions or any of Your rights, obligations, or benefits hereunder, by operation or law or otherwise, without our prior written consent.
(g) No Third-Party Beneficiaries. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns, and they shall not be construed as conferring any rights on any other persons.
(h) Severability. If any provision of the Terms and Conditions is held by a court or arbitrator of competent jurisdiction to be contrary to law, such pro- vision shall be changed by the court or by the arbitrator and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the Terms and Conditions shall remain in full force and effect.
(i) Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the other party first written above or at such other address as may hereafter be furnished in writing by either party hereto to the other party. Such notice will be deemed to have been given as of the date it is delivered, if by personal delivery or email; the next business day, if deposited with an overnight courier; and five days after being so mailed.
(j) Headings. The headings of the sections of the Terms and Conditions are for convenience only and do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe its meaning, scope or intent.
(l) Survival. Sections of the Terms and Conditions intended by their nature and content to survive termination of the Terms and Conditions shall so survive.
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