TERMS AND CONDITIONS OF SALE
The following Terms & Conditions are effective as of 1st August 2015.
Your execution and delivery of an Order Form for Artwork (as this term is defined below) constitutes your agreement to these Terms and Conditions. Such an Order Form together with these Terms and Conditions form a legally binding agreement between you and the relevant Elliot James & Tyndal entity with which you are contracting (“Agreement”).
If you are dealing with Elliot James & Tyndal Limited (“Hong Kong”), then the Order Form and these Terms and Conditions constitute your agreement
The Agreement would be legally binding on both the Customer and the relevant Elliot James & Tyndal entity from the date of receipt of an executed Order Form.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, the following words and expressions shall, where the context so admits, have the following meanings:
(a) EJT refers to Elliot James & Tyndal Limited Hong Kong.
(b) “Artwork” means the artwork(s) described in the purchase details of the Order Form.
(c) “Customer” means the person(s) or company, as the case may be, designated as the Customer in the Order Form.
(d) “Designated Warehouse” any suitable designated storage facility that may be appointed.
(e) “Joint Owner(s)” means the persons identified as joint owner(s) in an Order Form and who sign or execute an Order Form singly or jointly.
(f) “Order” means the placement of a request by a Customer for the purchase of any artwork which is subsequently accepted. “Order Form” means the form which is for the purpose of a Customer providing written confirmation of an Order.
1.2 The clause and paragraph headings in these Terms and Conditions are for ease of reference only and may not be taken into account in the construction or interpretation of any covenant, condition or provision to which they refer.
1.3 Words in these Terms and Conditions importing the singular meaning shall, where the context so admits, include the plural meaning and vice versa.
1.4 Words in these Terms and Conditions pertaining to the masculine gender shall include the feminine and neutral genders and vice versa and words denoting natural persons shall include corporations and firms and all such words shall be construed interchangeably in that manner.
1.5 Where there are two or more Joint Owner(s), all covenants, agreements, terms, conditions and restrictions shall be binding on and applicable to each Joint Owner jointly and severally, and shall also be binding on and applicable to their personal representatives and permitted assigns respectively both jointly and severally.
2. PLACEMENT OF AN ORDER
2.1 The Customer shall place an Order using an Order Form and deliver the same to an authorized representative of the relevant EJT entity which reserves the right, at its sole and absolute discretion, to reject or amend any Order made by a Customer. Any amendments made to an Order will not be legally binding on the Customer unless and until it is accepted by the Customer. The receipt of any Order Form is not effective until it is confirmed and accepted in writing by the relevant EJT entity.
2.2 An Order which has been accepted cannot be cancelled unless mutually agreed by the Customer and the relevant EJT entity.
2.3 No employees of any EJT entity and/or its agents are authorised to make any representations or warranties concerning the Artwork, and the Customer shall at all times not rely on any representations or warranties made by employees or agents of any EJT entity unless such representations or warranties have been confirmed in writing.
3. PRICE AND PAYMENT
3.1 The Customer shall be fully responsible for bearing, and payment by the Customer shall include, all or any taxes, levies, duties or expenses payable by the Customer for the Order or incurred by the relevant EJT entity on behalf of the Customer in relation to the Order.
3.2 Subject to Clause 3.4, the price of the Order shall be the price as stated in the Order Form.
3.3 Payment for the Artwork shall be by any method designated by the relevant EJT entity.
3.4 The Customer hereby acknowledges and agrees that the relevant EJT entity reserves the right, by giving notice to the Customer at any time before delivery of the Artwork, to increase the price of the Order to reflect any increase in the cost to the relevant EJT entity which may be due to any factor beyond its control (such as, and/or without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties or taxes, significant increase in the costs of transportation or any import or export restrictions howsoever imposed), any change in delivery dates, quantities or specifications for the Order which may be requested by the Customer, or any delay caused as a result of any instructions provided by the Customer and/or failure by the Customer to give adequate information or instructions.
4. DELIVERY AND STORAGE
4.1 Except as provided in the Order Form, and unless otherwise agreed to in writing between the Customer and the relevant EJT entity, all prices provided by the relevant EJT entity shall include:
(a) Upon request by the Customer, storage of the Artwork for five (5) years with the Designated Warehouse commencing from the moment of entry into storage of the Artwork;
(b) Insurance for five (5) years for the total value of the Artwork during the period of storage, and;
(c) Packing and delivery of the Artwork from the country of origin to Hong Kong and then onwards to the Designated Warehouse.
4.2 In the event the Customer notifies the relevant EJT entity in writing of the Customer’s request to withdraw the Artwork from the Designed Warehouse, the Customer may collect the Artwork from the Designated Warehouse at any time after the Customer has been notified that the Artwork is ready for collection.
4.3 In the event the Customer collects the Artwork from the Designated Warehouse before the five (5) year storage period expires, there shall be no refund for any unused portion of the storage, insurance or any other costs or expenses pre-paid by the Customer as a result of collecting the Artwork before the end of the five (5) year storage period.
4.4 Any delivery date specified for delivery of the Artwork is an approximate date only, and as time is not of the essence, the relevant EJT entity shall not be liable for any delay in the delivery of the Artwork, provided reasonable efforts are used to deliver the Artwork within a reasonable period of time. Time will be of the essence only if agreed to by the relevant EJT entity in writing. The Artwork may be delivered in advance of the delivery date specified, upon reasonable notice being given to the Customer.
4.5 Notwithstanding anything contained in these Terms and Conditions, the relevant EJT entity’s liability in respect of the delivery of the Artwork shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar artwork to replace the Artwork not delivered.
4.6 If on delivery of the Artwork, the Customer fails to take possession of or fails to give the relevant EJT entity adequate delivery instructions at the time stated for delivery (otherwise than by reason or any cause beyond the Customer’s reasonable control or any fault of the relevant EJT entity) then, without prejudice to any other right or remedy available, the relevant EJT entity may:
(a) Store the Artwork until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage, or;
(b) If full and final payment has not been effected for any reason, sell the Artwork at the best price readily obtainable and charge the Customer for any shortfall below the price payable by the Customer under these Terms and Conditions.
4.7 No EJT entity shall be liable for any advice or recommendation given by any of its employees, representatives or agents to the Customer or the Customer’s employees, representatives or agents as to the storage, application or use of the Artwork which is not confirmed in writing by the relevant EJT entity, and which, if acted upon, is entirely at the Customer’s own risk.
5. WITHDRAWAL OF ARTWORK FROM DESIGNATED WAREHOUSE
5.1 If the Customer wishes to withdraw the Artwork from the Designated Warehouse, the Customer must complete a withdrawal form that can be obtained from the relevant EJT entity. If the Customer is represented by an agent (“Customer’s Agent”), a letter of authority is required to authorize the agent to act on behalf of the Customer (“Letter of Authority”). The Customer shall forward the completed withdrawal form and, where applicable, the letter of authority to the relevant EJT entity.
5.2 The Customer shall be required to complete the Letter of Authority if the Customer is not collecting, taking possession of or accepting delivery of the Artwork in person. The Customer shall provide the particulars of the Customer’s Agent requested.
5.3 The relevant EJT entity shall inform the Customer of all charges associated with the final delivery of the Artwork to the Customer including but not limited to: shipping and/or air freight, packing and framing charges. The Customer agrees to pay for all the charges incurred as a result of the withdrawal and delivery of the Artwork, that delivery shall only be arranged upon payment of such charges and that the risk of loss or damage to the Artwork shall pass to the Customer on delivery. Alternatively, the Customer can choose a provider of his or her choice, or pick up the Artwork from the relevant EJT entity’s premises or the Designated Warehouse. In this instance, the Customer will bear all costs of picking up the Artwork and the risk of damage to or loss of the Artwork from the time it is picked up from his or her nominated place.
5.4 Each Joint Owner may make a withdrawal of the Artwork, provided that suitable identification is provided showing that person to be a Joint Owner as established in clause 5.7.
5.5 The Customer shall give EJT at least three (14) business days to process the request for withdrawal.
5.6 For the purpose of identification and security, the Customer or, where relevant, the Customer’s Agent shall present original documents of identification upon the delivery of the Artwork to the designated place of delivery or collection of the Artwork from the Designated Warehouse.
5.7 The Customer shall provide his or her full particulars or the particulars of an authorized representative including a passport number (or other type of acceptable means of identification), address, contact number, email address and a sample of the Customer’s signature or the signature of an authorized representative according to the Customer’s signed Order Form. Copies of any type of identity document reasonably requested shall be provided by the Customer or his or her authorized representative, which shall be forwarded to the Designated Warehouse for their records.
6. JOINT OWNER(S)
All Joint Owners are jointly and severally liable to the relevant EJT entity for each of the obligations of a Customer that is stipulated under these Terms and Conditions.
7. RISK AND WARRANTY
7.1 Risk of damage to or loss of the Artwork shall pass to and be borne solely by the Customer if damage or loss takes place under any situation or condition beyond the reasonable control of the relevant EJT entity, including the following situations:
(a) In the case of Artwork stored at the Designated Warehouse, from the time the relevant EJT entity notifies the Customer that the Artwork(s) is or are available for collection, or
(b) In the case of Artwork to be delivered to a place other than the Designated Warehouse, at the time of delivery or, if the Customer wrongfully fails to take delivery of the said Artwork, the time when the relevant EJT entity has attempted to tender delivery of the Artwork.
7.2 Notwithstanding delivery and the passing of risk in the Artwork, or any other provision of these Terms and Conditions, absolute title shall not pass to the Customer until the relevant EJT entity has received payment in full including all charges attached to the Artwork for which payment is finally due.
7.3 No EJT entity warrants:
(a) The quality, use or purpose or freedom from defect or deterioration of the Artwork that is reasonably beyond its control, either at the time of delivery or deemed delivery or at the time of collection by the Customer;
(b) In any way whatsoever, the market value or appreciation in value of the Artwork as represented by itself, its employees, representatives or agents at any time, or;
(c) That the Artwork complies with any description in any marketing materials, packaging or the information on any label or that the Artwork complies with any sample.
7.4 No EJT entity shall in any circumstances be liable for any consequential loss or damage arising from the deterioration of any Artwork, the loss of market for the Artwork, decline in the value of any Artwork or for any damages arising from or attributable to any cause not reasonably in its control. The relevant EJT entity shall not in any circumstances be liable or obliged to repurchase the Artwork or to affect any future sale of the Artwork. The Customer understands that the value of any Artwork can change depending upon market fluctuations and therefore, any representations by the relevant EJT entity as to the value of the Artwork at the time the Customer chooses to take possession is an approximation only and no EJT entity shall not be liable or obliged or be bound by any such representations whatsoever.
7.5 The Customer acknowledges and agrees that the relevant EJT entity does not and cannot guarantee delivery of the Artwork at any designated date or time.
8. LIMITATION OF LIABILITY
Other than as expressly set forth herein, no EJT entity shall be liable to the Customer, whether directly or indirectly, for any direct, special, consequential or incidental damages, such as, but not limited to, property damage, loss of profit or loss of use of the Artwork.
9. FORCE MAJEURE
No EJT entity shall be liable to the Customer or deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Artwork, if the delay or failure was due to any cause beyond its reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond an EJT entity’s reasonable control:
(a) Acts of God, explosion, flood, tempest, fire or accident;
(b) War or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) Import or export regulations or embargoes; and
(e) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of EJT or of a third party).
10. GOVERNING LAW AND JURISDICTION
10.1 If your Agreement is with EJT Hong Kong,
(a) these Terms and Conditions shall be construed in accordance with and governed in all respects by the laws of Hong Kong;
(b) the parties hereto agree to submit, to the non-exclusive jurisdiction of the courts of Hong Kong Special Administrative Region of the People’s Republic of China.
10.2 For the avoidance of doubt, since the Agreement is a legally binding contract between you or one of the EJT entities, then you only have legal rights against the EJT entity with which you are contracting with.
11. NO THIRD PARTY RIGHTS
Unless otherwise expressly stated herein, a person who is not a party to this Agreement has no rights under these Terms and Conditions.
12. GENERAL PROVISIONS
If any provisions of these Terms and Conditions is not valid or legally enforceable, the other provisions shall not be affected. These Terms and Conditions are subject to change without notice, from time to time at our sole discretion. We will notify you of amendments to these Terms and Conditions by posting them to this website.
13. ENTIRE AGREEMENT
13.1 These Terms and Conditions constitute the sole and entire understanding between the parties with respect to the subject matter hereof and may not be altered or amended except in writing and signed by both parties and is intended as a complete and exclusive statement of the terms of the agreement between the parties.
13.2 For the avoidance of doubt, the provisions of these Terms and Conditions may be altered if the Customer enters into any other legally binding agreement with the relevant EJT entity that may be in conflict with or alter the provisions of these Terms and Conditions, such as an agreement to rent the Artwork to the relevant EJT entity.
13.3 These Terms and Conditions may be available in both English and other languages and in case of dispute, the English version shall prevail.