TERMS & CONDITIONS
February 2018
The following are the terms and conditions (the “Terms”) under which you (a “User”) may use the web sites and co-branded web sites of ArtFortune at www.ArtFortune.com and/or any other addresses (any or all of which are herein referred to as the “www.artfortune.com”). Please read this page carefully. By accessing and using the Web Site, you accept and agree to be bound, without modification, limitation or qualification, by the Terms. ArtFortune may, at its sole discretion, modify or revise the Terms at any time by updating the text of this page. You are bound by any such modification or revision and should therefore visit this page periodically to review the Terms.
Specific rules, in addition to these Terms, are provided with respect to transactions conducted on or in connection with ArtFortune.com , and other rules may be provided for the use of certain other items, areas or services provided on or in connection with the ArtFortune.com, and you agree to be bound by such rules.
YOUR USE OF THE WEB SITE CONSTITUTES YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN OR OTHERWISE POSTED ON THE WEB SITE. (THE CONTENT OF SUCH AGREEMENT, INCLUSIVE OF THE TERMS AND ALL SUCH ADDITIONAL CONDITIONS AND NOTICES, ARE TOGETHER REFERRED TO HEREIN AS THE “AGREEMENT.”) IF YOU DO NOT ACCEPT ANY OF THE PROVISIONS OF THE AGREEMENT, DO NOT USE THE WEB SITE.
Section 1. The Material on the Web Site
WARNING: The content of the Web Site is not intended for minors. Such content extends to a wide range of art and antiquities, is generally uncensored, and may include nudity or other graphic or literary content that some people may consider offensive, as well as access to live or electronic bidding on articles such as firearms and alcoholic beverages that may be harmful and/or illegal in the hands of minors and children and/or inappropriate for them to view or have access to. If you allow your child to use your computer, it is your responsibility to determine whether any of the services, content and subject matter displayed on the Web Site is inappropriate for your child, and to control the child’s use of the computer accordingly. If you yourself find offensive content of the type referred to above, you should not use the ArtFortune.com.
The contents of the ArtFortune, such as text, graphics, images, audio, video, data, coding, scripts, computer programs and other material (“Material” or “Materials”), are protected by copyright under the laws of the United States as well as other countries, and are owned or controlled by the ArtFortune or by third parties that have licensed their Material to ArtFortune. ArtFortune authorizes you to view and download a single copy of the Material solely for your personal, non-commercial use, or in the case of dealers, to display to your clients solely for purposes of facilitating a transaction with ArtFortune. The use of any software that is made available for downloading from ArtFortune.com (“Software”) is governed by the terms of the software license agreement accompanying such software (the “License Agreement”), and is conditioned on your agreement to be bound by the terms of the License Agreement. All rights in and to the Material not expressly granted to you in the Agreement are reserved. Neither the availability of, nor anything contained within the Web Site shall be construed as conferring any license under any of the ArtFortune’s or any third party’s intellectual property rights, other or further than as expressly provided in the foregoing provisions of this paragraph, whether by implication, estoppel or otherwise.
Unauthorized use of the Material may violate copyright, trademark, and other laws. You may not sell, prepare derivative works based on or modify the Material (including, without limitation, preparation of summaries of the Material or “thumbnails” of any images therein), or reproduce, publicly display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose. The use of the Material or any portion thereof on any other web site, or in any publication, database, catalog or compilation, or in a networked computer environment for any purpose other than personal browsing of the ArtFortune.com without the express prior written permission of ArtFortune is strictly prohibited. With respect to any copy you make of the Material within the scope of the limited personal license granted herein, you must retain therein, unmodified and unobscured, any and all copyright and other proprietary notices contained in the original Material. Some of the Material may contain digital “watermarks” to indicate their source and ownership. You agree not to attempt to remove, deactivate, reverse engineer, modify, tamper with or obscure any such watermarks. The trademarks, logos and service marks (the “Marks”) displayed on ArtFortune are owned by the Company or third parties. You are prohibited from using the Marks without the express, prior written permission of ArtFortune or such third party. If you would like information about obtaining the Company’s permission to use the Material on your web site, please email [email protected].
ArtFortune reserves the right to employ robot exclusion headers and similar mechanisms within ArtFortune.com, and you agree that you and all persons and facilities under your control will honor such headers and mechanisms. Regardless of the presence or absence of any such headers or mechanisms, and without limiting the generality of any other restriction on use of ArtFortune.com or the Material set forth in this Agreement, you will not in any event use any robot, spider, or other automatic or manual device or process for the purpose of compiling information regarding the identification, address or other attributes of any of our Users, bidders or sellers, or to recreate in original or modified form any substantial portion of ArtFortune.com. You further agree not to use any device, software or routine to interfere or attempt to interfere with the proper functioning of ArtFortune.com or any transactions being conducted on or in connection with ArtFortune.com. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our servers or systems.
If you violate any provision of the Agreement, your permission to use the Material and ArtFortune.com automatically terminate and you must immediately destroy any copies you have made of the Material.
ArtFortune respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the ArtFortune’s Copyright Agent the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest
- a description of the copyrighted work that you claim has been infringed
- a description of where the Material that you claim is infringing is located on the site
- your address, telephone number, and e-mail address
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf
ArtFortune’s Copyright Agent for Notice of claims of copyright infringement on its site is Elena Kohn who can be reached as follows:
Elena Kohn
Company Owner
Art Fortune.com
Arizona ,US
Tel:
[email protected]
Section 2. Privacy; User Submissions
The Company is committed to maintaining your privacy. The Company does, however, gather certain information that you provide to the Web Site. For information regarding the Company’s policies for using User information please read our Privacy Policy.
The Company may provide certain areas of the Web Site (such as chat rooms, message boards or other facilities) designated as open to public access or to our Users at large (each of which is referred to herein as a “Public Area”). Generally, any communication that you post to a Public Area is considered to be non-confidential.
By posting communications (including any graphic or multimedia content) to any Public Area, you automatically grant the Company a royalty-free, perpetual, irrevocable non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, publicly perform, and publicly display the communication and any trademarks, names or likenesses therein alone or as part of compilations or other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. (Provisions conferring similar rights on the Company may apply under separate terms or agreements with respect to certain matter submitted other than in Public Areas; you should check the applicable agreements or terms provided by the Company in order to ascertain your rights.)
The Company does not screen communications in advance and is not responsible for screening or monitoring material posted by Users. As a User, you are responsible for your own communications and are responsible for the consequences of their posting. You must not do any of the following things while accessing or using the Web Site or using the Material: (1) post or transmit any material unless you are the owner of all patent, trademark, copyright, trade secret or other proprietary rights (“Rights”) therein, or have the permission of the owner of the Rights to post or transmit such material to the Web Site; (2) post material that otherwise violates any Rights of any third party or violates or infringes on the privacy or publicity rights of third parties; (3) post material that is obscene, defamatory, threatening, harassing, abusive, hateful, embarrassing or otherwise objectionable to another User or any other person or entity; (4) post sexually-explicit language or images; (5) post advertisements or solicitations of business; (6) post or transmit any chain letters or pyramid schemes; (7) impersonate another person or entity; (8) intentionally or unintentionally violate any applicable local, state, national or international law while using or accessing the Web Site or the Material; or (9) post or transmit any information containing a virus or other harmful component.
If notified by a User of communications that allegedly do not conform to any term of this Agreement, the Company may investigate the allegation and determine in its sole discretion whether to remove or request the removal of the communication. The Company has no liability or responsibility to Users for performance or non-performance of such activities. The Company reserves the right, in its sole discretion, to expel Users and prevent their further access to the Web Site for violating this Agreement or the law. The Company also reserves the right at all times to disclose any information as necessary or deemed desirable by the Company to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in the Company’s sole discretion.
THE COMPANY DOES NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY COMMUNICATIONS POSTED BY OTHER USERS OR ENDORSE ANY OPINIONS EXPRESSED BY USERS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON MATERIAL POSTED BY OTHER USERS WILL BE AT YOUR OWN RISK.
Section 3. Registration, Passwords and Signatures
In consideration of your use of the Web Site, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by any registration form that you may fill out on any Web Site (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or the Company has grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Web Site (or any portion thereof).
You may receive a password and/or account designation, or a digital signature upon completing the registration process on the Company’s Web Site. You are responsible for maintaining the confidentiality of any such password, digital signature and account, and are fully responsible for all activities that occur under your password, digital signature or account. You agree to (a) immediately notify the Company of any unauthorized use of your password, digital signature or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Section 4. Use of the Auction or Commerce Portions of the Web Site
The auction or commerce portions of the Web Site are available only to clients of the Company. This excludes in all cases minors (persons who have not reached their eighteenth birthday).
Section 5. Links to Other Sites
The Web Site may contain links to third-party web sites that are maintained by others. These links are provided solely as a convenience to you and not as an endorsement by the Company of the contents of such third-party web sites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party web sites. If you decide to access linked third-party web sites, you do so at your own risk.
Section 6. Liability Disclaimers
The Material may contain inaccuracies or typographical errors. Except as may be separately specifically provided with respect to a particular sale, the Company makes no representations about the accuracy, reliability, completeness, or timeliness of the Material or about the results to be obtained from using the Web Site and the Material. Any use of the Web Site and the Material is at your own risk. Advice received via the Web Site should not be relied upon for personal, medical, legal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation. Changes are periodically made to the Web Site and may be made at any time. Some Material on the Web Site is provided by third parties and the Company shall not be held responsible for any such Material provided by third parties.
You acknowledge and agree that, in the event that there are discrepancies or differences between the descriptions of property provided on the Web Site, on the one hand, and the saleroom catalogue or saleroom addenda and announcements related to such property, on the other, the latter will in all events be considered to be authoritative and controlling.
THE COMPANY DOES NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR-FREE, CONTINUOUSLY OR WITHOUT INTERRUPTION, OR THAT THE WEB SITE OR ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT. IF YOUR USE OF THE WEB SITE OR THE MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE AND MATERIAL ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. THE COMPANY AND ITS SUPPLIERS MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE TEXT, GRAPHICS, AND LINKS. SOME STATES/JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY DEPENDING ON YOUR STATE/JURISDICTION.
Section 7. Disclaimers of Certain Damages
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEB SITE, OR WITH ANY PROVISION OF THE AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEB SITE. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO ANY USER OR ANY THIRD PARTY ON ACCOUNT OF THAT USER’S USE OF THE WEB SITE. IN NO EVENT SHALL THE COMPANY AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY SUCH THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE WEB SITE, THE DELAY OR INABILITY TO USE THE WEB SITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Section 8. Indemnity
You agree to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any losses, liabilities, damages, costs, and expenses, including, without limitation, reasonable legal, expert and accounting fees, incurred in connection with any claims, actions or demands alleging or resulting from your use of the Material (including Software), your breach of this Agreement, or your violation of law or of the rights of any third party. The Company shall provide notice to you promptly of any such claim, suit, or proceeding and, if it is one asserted by a third party, shall provide reasonable assistance to you, at your expense, in defending any such claim, suit or proceeding.
Section 9. Export Control of Software and Technical Data
The following applies with respect to Software and other Material of a technical nature that you may obtain from the Web Site (other requirements set forth in Section 10 below may apply with respect to items offered for sale, purchased or sold): The United States controls the export of such items. You agree to comply with such restrictions and not to export or re-export the Material (including Software) to countries or persons prohibited under the export control laws. By downloading the Material (including Software), you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department’s Table of Denial Orders or the U.S Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Software and/or other Material.
Section 10. Import and Export Regulations Regarding Tangible Property
The United States and most foreign countries regulate the importation and exportation of tangible property. Many countries require a declaration of export for property that is leaving the country. Additionally, most countries require an Import Declaration at the time of customs clearance of property into that country. Upon import, these countries may impose duties, other taxes and/or restrictions on the property. Many countries also prohibit or restrict importation or exportation of property containing ivory, tortoiseshell, whalebone, and/or products derived from other endangered or protected species, and require special licenses or permits in order to import or export such property. Other countries regulate movement of antiquities and cultural items, which in some cases are subject to a right of pre-emption or compulsory purchase by the country from which they are to be exported. It is the responsibility of the seller to ensure that the item is properly and lawfully exported from the country in which it is located. It is the responsibility of the buyer to ensure that the property is properly imported into the buyer’s country. If you participate in the auction or commerce portions of the Web site, and, as a result, purchase property that you plan to ship to another country, you agree that you are responsible for familiarizing yourself with and complying with any and all applicable rules and regulations.
THE COMPANY MAKE NO REPRESENTATION OR WARRANTY AND ACCEPTS NO LIABILITY WHATSOEVER TO THE SELLER, THE BUYER, OR ANY THIRD PARTY IN RESPECT OF THE AVAILABILITY OR ISSUANCE OF VALID IMPORT AND EXPORT PERMITS OR THE EXISTENCE OR EXERCISE OF PRE-EMPTION OR OTHER RIGHTS TO PURCHASE BY GOVERNMENTAL OR REGULATORY AUTHORITIES ANYWHERE.
Section 11. General
The Company makes no claim that the Materials are appropriate for any particular purpose or audience, or that they may be downloaded outside of the United States. Access to the Materials (including Software) may not be legal by certain persons or in certain countries. If you access the Web Site from outside of the United States, you are responsible for compliance with the laws of your jurisdiction.
The Web Site is based in the State of Arizona , U.S.A. All legal issues arising from or related to the use of the Web Site shall be construed in accordance with and determined by the laws of the State of Arizona applicable to contracts entered into and performed within the State of Arizona without respect to its conflict of laws principles. By using the Web Site, you agree that the exclusive forums for any claims or causes of action arising out of your use of the Web Site shall be the state courts for or within Scottsdale County in the State of Arizona, and the United States District Court for theDistrict of Arizona. You hereby irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site must be filed within one (1) year after such claim or cause of action arose or be forever barred. This Agreement constitutes the entire Agreement between you and the Company with respect to the use of the Web Site. Any changes to this Agreement must be made in writing, signed by an authorized representative of the Company.
TERMS OF USE
MASTER SELLER AGREEMENT
General
This Agreement sets forth the terms and conditions that govern the relationship between ArtFortune Worldwide Corp. (“ArtFortune”) and you (“you” or “Seller”) with respect to process, terms and conditions under which you may offer or sell works-of-art such as art, artifacts, design objects and other similar items (collectively “Works-of-art”) on ArtFortune’s websites (ArtFortune.com, ArtFortune.de, ArtFortune.fr and all other related websites) (collectively, the “Site”). If you wish to access or use the Site to offer or sell Works-of-art through the Site (the “Services”), you must accept the terms and conditions of this Agreement, without change. PLEASE REVIEW THE FOLLOWING TERMS CAREFULLY BEFORE USING THE SITE AND ITS SERVICES. BY REGISTERING AND USING THE SERVICES OF THE SITE AS A SELLER, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE HEREIN (including, without limitation, THE Works-of-art Policy and Listing Guidelines ANNEXED HERETO).
The online auctions portion of the Site provides a venue and mechanism for you to conduct auctions for items of Works-of-art posted by you on the Site; and for bidders to bid for such items of Works-of-art in auctions conducted by you. As such, ArtFortune is not involved in the actual transactions between buyers and sellers, has no control over the buyers and/or the sellers, and does not guarantee in any manner that buyers will pay or that any transaction(s) will be completed.
Use of the online auction portion of the Site and the Services is limited to Sellers that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not sell items of Works-of-art through the Site. Every Seller who uses the Services hereby represents and warrants to ArtFortune that he or she is not a minor, is at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law. To register, you must provide your real name, address, phone number, e-mail address and valid credit card number, along with other information that may be required from time to time. Providing inaccurate registration information constitutes breach of this Agreement.
Use of the Site
You may list works-of-art for sale at auction on the Site during the term of this Agreement, subject to the following terms and conditions:
You will describe all Works-of-art offered by you truthfully and accurately. This would encompass text descriptions, images and pictures of each item of Works-of-art including, without limitation, its physical condition (otherwise known as a condition report), age, provenance, and any other relevant data. All damage to Works-of-art must be photographed and clearly presented on the Site. Additionally, the information presented in your listing cannot be misleading, either through the inclusion of actual information provided or by the omission of information.
The Site and its Services only may be used for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding your use of the Site and its Services. All information you post on the Site will comply with all applicable law, statutes and regulations. It is your responsibility to determine whether the offer or sale of Works-of-art may violate applicable laws, statutes or regulations. The minimum regulatory venue is deemed to be United States of America and the State of New York.
When posting Works-of-art for sale on the Site, you are responsible for establishing the pre-sale estimates (including both a “high” estimate and a “low” estimate for each item) and, for items offered on the Site as auctions, the starting price (i.e., minimum initial bid price) will be set at ten percent (10%) or more of the low end of the estimated value of the item. You will have the option to also establish a reserve for each item but a reserve is not required. A reserve is the minimum acceptable hammer price at which the item may be sold. It is the policy of the Site that in no case may the reserve exceed the posted low pre-sale estimate, and you agree to comply with this policy.
You will adhere to the Works-of-art Policy and Listing Guidelines annexed hereto and such other policies and guidelines applicable to the Site as such may be amended by us from time to time in our sole discretion.
You will adhere to ArtFortune’s Return Policy in effect at the time of the auction’s “live” period with respect to items of Works-of-art sold by you through the Site. The Return Policy will be disclosed to you at the time of your registration as a seller of items of Works-of-art on the Site and may be amended by us from time to time in our sole discretion.
You will not to offer buyers the opportunity through the Site to purchase any items of Works-of-art outside of the Site.
You will not to allow other persons or entities to post items on the Site using your membership name. Unauthorized use of passwords or user accounts is also prohibited. You agree not to share account information with other parties. ArtFortune will not be held liable for any activity resulting from compromised account information.
You will not interfere with the operation of the Site or with any auction being conducted on the Site, through any device, software, virus or other means, including without limitation, sniping, time bombs, etc.
You acknowledge and agree that you have read our Terms of Use and Privacy Policy, which is incorporated by reference into, and made part of, this Agreement. We may change our Terms of Use and/or Privacy Policy in the future without notice to you and you should check our Terms of Use and Privacy Policy sections of the Site frequently for changes. Except as authorized herein and unless otherwise authorized or consented, you agree not to use any information regarding other participants which is accessible from the Site or disclosed to you through the Site except to enter into and complete transactions. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, otherwise objectionable conduct or otherwise inconsistent with our Terms of Use and/or Privacy Policy.
You will immediately notify ArtFortune if you suspect that your information or listing data has been compromised.Should the authenticity of authorship of any Works-of-art sold by you through the Site be found to be incorrect, you will permit the purchaser to return such Works-of-art to you for full refund.
You are strictly prohibited from placing bids or causing bids to be placed on any item of Works-of-art for the purpose of artificially increasing or otherwise manipulating the bidding process on the Site or the bid price of any item of Works-of-art listed on the Site.
You will complete the transaction(s) as described by this Agreement. You agree to honor the transaction contract. You will not fail to deliver an item for which payment was accepted, significantly misrepresent an item by not meeting the terms and item description outlined in the listing, or refuse to accept payment for an item at the end of a successful sale. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.
It is your responsibility to determine whether sales or use taxes apply to any sale transactions conducted by you through the Site and to collect, report and remit the correct tax to the appropriate tax authority. ArtFortune is not obligated to determine whether sales or use taxes apply and is not responsible to collect, remit, pay or report any sales or use taxes arising from any such sale transaction.
Once an auction is live, Seller cannot amend or make any changes to the auction. If a change is necessary, for any reason, you are required to notify ArtFortune promptly. ArtFortune reserves the right, in its sole discretion, to terminate any auction that has commenced and re-offer the item with a revised description. If you do not want to re-offer the item of Works-of-art, ArtFortune will be entitled to collect a Commission Fee (as defined below) as if the item of Works-of-art sold at the low estimate price.
ArtFortune has the right, but not the obligation, to monitor any activity and content associated with the Site. ArtFortune may, but shall not be obligated to, investigate any reported violation of this Agreement or any of its policies and guidelines (including, without limitation our Privacy Policy, Terms of Use, Works-of-art Policy and Listing Guidelines or Return Policy) or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials on the Site, including listings, all of which may be taken by ArtFortune without liability to you or any other person or entity. ArtFortune reserves the right and has sole discretion, to remove, screen or edit any content that violates these provisions or is otherwise objectionable. In addition, ArtFortune may, in its sole discretion, remove any item of Works-of-art posted by you or cancel any auction in progress that it determines has been posted on the Site in violation of this Agreement or any of its policies and guidelines (including, without limitation our Privacy Policy, Terms of Use, Works-of-art Policy and Listing Guidelines or Return Policy). In the event of a removal or cancellation, ArtFortune will not have any liability to you, any bidder or any other person or entity with respect to the offer of such item or the cancellation of the auction.
As permitted by applicable law, ArtFortune also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with information requests, to protect ArtFortune’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of the Site, ArtFortune’s business and systems or other purposes deemed reasonable by ArtFortune, ArtFortune may access and disclose any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
Warranty of Authenticity
You warrant the authenticity of all items of Works-of-art offered by you for bidding or purchase on the Site in accordance with the Works-of-art Policy and Listing Guidelines. ArtFortune reserves the right to terminate any auction or sale of any item which it believes in its sole discretion is not authentic or where authenticity is substantially not as described in the listing. ArtFortune will have no liability to the Seller or other person or entity (including any bidder) in any auction terminated by ArtFortune.
Use of Content
You, the Seller, grant to ArtFortune and its affiliated entities an irrevocable, non-exclusive, worldwide, royalty-free, perpetual license and right to publish, reproduce or otherwise use all materials, text, information, images, photographs or other content listed, posted, displayed or otherwise submitted by you to the Site (collectively, the “Materials”) for all purposes, in any medium whatsoever. It shall be Seller’s sole and exclusive responsibility to secure any necessary permissions and/or authorizations to list, post or display any Materials on the Site where such rights are held by third parties.
Dispute Resolution
Because ArtFortune is not a party in the actual transaction between a seller and buyer conducted through the Site and is not the agent of either for any purpose, ArtFortune does not have the duty to resolve and will not be involved in resolving any disputes between participants related to or arising out of any such transaction. ArtFortune has no control over and does not guarantee the quality, safety or legality of items offered for sale through the Site, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.
It is ArtFortune’s policy to allow sellers and buyers the opportunity to settle differences directly. ArtFortune reserves the right, but has no obligation, to investigate either a seller’s or a buyer’s complaint with respect to any item of Works-of-art offered for sale through the Site. You agree to cooperate with any investigation that ArtFortune may conduct in response to a claim, and to provide ArtFortune with any documentation in your possession or control. You agree to abide by the terms of ArtFortune’s Return Policy in effect from time to time.
If a buyer requests that you rescind a sale of an item sold on the Site, you agree to consider such purchaser’s claim in good faith, and to rescind such sale, if appropriate, under the terms of the Return Policy.
Limitation of Liability
THE SITE AND SERVICE IS “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. ARTFORTUNE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
ARTFORTUNE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SITE OR SERVICES OR THOSE RESULTING FROM ANY GOODS OR SERVICES SOLD, PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR SERVICES WHETHER SUCH DAMAGES ARISE UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Please note that this disclaimer of warranties and limitation of liabilities applies to ArtFortune’s service providers and to each of their respective affiliated entities. ArtFortune does not guarantee or represent in any manner that the Site or Service will operate error-free or that the Site or Service will be uninterrupted.
Indemnity
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD ARTFORTUNE AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH (A) YOUR USE OF THE SITE AND SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CLAIM RELATING TO ANY WORKS-OF-ART OFFERED FOR SALE OR SOLD BY YOU ON THE SITE); (B) YOUR BREACH OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, YOUR BREACH ANY GUIDELINES AND/OR POLICIES INCORPORATED BY REFERENCE HEREIN); (C) YOUR VIOLATION OF ANY STATE, FEDERAL, FOREIGN OR INTERNATIONAL LAWS, CODES OR REGULATIONS; AND/OR (D) YOUR VIOLATION OF ANY THIRD PARTY’S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS.
Release
BECAUSE ARTFORTUNE IS NOT THE SELLER IN TRANSACTIONS BETWEEN BUYERS AND SELLERS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, YOU RELEASE ARTFORTUNE (AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY ARTFORTUNE.
Representations; Warranties and Additional Agreements
You represent and warrant that you have the full power and authority to enter into this Agreement and to grant to ArtFortune the rights set forth herein.
You agree to comply with the Site’s policies and guidelines as they may exist from time to time (including, without limitation, our Privacy Policy, Terms of Use, Works-of-art Policy and Listing Guidelines and Return Policy).
You represent and warrant that you have the right, power and authority to transfer clear and unencumbered title to any item of Works-of-art offered for sale by you through the Site to the successful bidder with respect to such item of Works-of-art and you agree to transfer such clear and unencumbered title (and the right to possession of such Works-of-art) to the successful bidder upon payment for such item of Works-of-art.
Unless you have “opted-out” in accordance with the registration procedures of the Site, you agree that the ArtFortune and its affiliated entities may use your name and identify you by your alias as an ArtFortune Online Auctions Member in any marketing and promotional material distributed about ArtFortune and/or its affiliated entities.
Amendment and Notification
ArtFortune reserves the right to change any of the terms and conditions contained in this Agreement (including, without limitation, the Fee Schedule, Works-of-art Policy and Listing Guidelines and/or Return Policy) by posting on the Site either a new agreement or any changes or amendments thereto. Each time any of the foregoing is changed or amended, ArtFortune will send notification of the changes or amendments in an email to you at the address you have provided in your account settings. Each change or amendment will be automatically effective ten (10) days after notice thereof is initially emailed to you. No changes or amendments shall affect the sale of any Works-of-art that you posted for sale before such change or amendment became effective. YOUR CONTINUED USE OF THIS SITE AND ITS SERVICES FOLLOWING ARTFORTUNE’S POSTING OF ANY CHANGES OR AMENDMENTS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR AMENDMENTS. IF YOU DO NOT AGREE TO ANY CHANGES OR AMENDMENTS TO THIS AGREEMENT (including, without limitation, ANY CHANGES OR AMENDMENTS TO THE Fee Schedule, Works-of-art Policy and Listing Guidelines AND/OR RETURN POLICY), DO NOT CONTINUE TO USE THE SITE OR ITS SERVICES AS A SELLER.
All informal communication between the parties will be via email to the extent feasible.
Termination of Agreement
ArtFortune reserves the right to terminate this Agreement at any time, on ten (10) days notice to you, for any reason whatsoever; provided, however, that unless this Agreement is terminated by ArtFortune pursuant to the paragraph immediately set forth below, this Agreement shall remain in effect to the extent necessary to permit you to complete your pending auctions on the Site at the time of notification of termination by ArtFortune.
Additionally, ArtFortune reserves the right to terminate this Agreement immediately upon notice to you and cancel any of your pending auctions, if: (i) you are found to be, in ArtFortune’s sole good faith judgment, in breach of this Agreement or the documents it incorporates by reference; (ii) ArtFortune believes that your actions may cause legal liability for ArtFortune or any Site users; or (iii) ArtFortune no longer offers the Service contemplated under this Agreement. The foregoing shall be in addition to any other rights or remedies in the event you breach this Agreement or the documents it incorporates by reference or if ArtFortune believes that your actions may cause legal liability for ArtFortune or any Site users.
Notification of any termination will be emailed to you at the address you have provided in your account settings.
The following Sections survive any termination of this Agreement: Warranty of Authenticity; Fees (with respect to fees owed for our services); Use of Content; Dispute Resolution; Limitation of Liability, Indemnity; Release; Representations, Warranties and Additional Agreements; and Miscellaneous.
Miscellaneous
The laws of the State of New York govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws.
YOU AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OUR SERVICES SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION SHALL BE CONDUCTED IN NEW YORK COUNTY, NEW YORK, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF. EITHER YOU OR ARTFORTUNE MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN NEW YORK COUNTY, NEW YORK. IF NECESSARY TO PROTECT THE RIGHTS OR WORKS-OF-ART OF YOU OR ARTFORTUNE PENDING THE COMPLETION OF ARBITRATION AND YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.
If anyone or more of the provisions contained in this Agreement for any reason is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid illegal or unenforceable provision or provisions had never been contained herein.
You shall not assign this Agreement to another entity or person without the prior written consent of ArtFortune. Subject tot the foregoing, this Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective heirs, executors, beneficiaries, successors and assigns.
You acknowledge and agree that no joint venture, partnership, agency, franchise, or employment relationship is created or intended by this Agreement, and agree not to represent to third parties that you are an agent, partner, joint venturer or employee of ArtFortune or any of ArtFortune’s affiliated entities.
This Agreement and the general terms, conditions set forth on the Site, including but not limited to the policies and guidelines referred to herein, constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.
ArtFortune’s failure to enforce the strict performance of any provision of this Agreement (or any policy or guideline referred to herein) will not constitute a waiver of ArtFortune’s right to subsequently enforce such provision or any other provisions of this Agreement (or any policy or guideline referred to herein).
Works-of-art policy and listing guidelines
- Restricted Works-of-art
A Seller shall not offer for sale any Works-of-art on the Site if the offering or sale of such Works-of-art violates applicable laws or regulations or may subject the Seller or ArtFortune to potential liability. Without limiting the foregoing, a Seller may not post the following types of works-of-art for sale on the Site:
Works-of-art containing ivory, tortoiseshell, or any other product of a plant or animal species that is protected as endangered or threatened under applicable national or local law
Wine, beer, liquor, distilled spirits or any product containing alcohol
Products containing tobacco or tobacco derivatives
Any firearms or explosives
Any artifacts or materials connected with or related to the “Nazi” regime that in ArtFortune’s sole discretion lacks appropriate artistic merit, offensive material, “hate” literature or other material, or any other works-of-art that ArtFortune deems, in its sole discretion, to be inappropriate or offensive
Any perishable products
Livestock or other living creatures
Any item containing human remains including but not limited to blood, hair, bone or tissue
Slot machines and gaming equipment
Pornographic material, including MPA-rated X, home porn, and hard-core material
Stolen works-of-art
Any works-of-art that a Seller is prohibited from selling under applicable “foreign asset control” or “economic sanction” restrictions and regulations promulgated from time to time, or if under a court’s control or under a court’s order prohibiting sale
Works-of-art whose sale or offering for sale would infringe any proprietary rights (including without limitation copyright, patent, trademark or other intellectual works-of-art rights), or privacy or publicity rights of any third party
Works-of-art whose sale or offering for sale is prohibited under applicable laws, rules or regulations
Defamatory or libelous material
Notwithstanding the items set forth above, ArtFortune reserves the right. in its sole discretion, to restrict or prohibit any item of Works-of-art from being offered for sale through the Site.
- Representations and Warranties Concerning Works-of-art
Each Seller shall be deemed to make the following representations and warranties to ArtFortune upon the posting of any Works-of-art for sale on the Site:
Seller has the right to offer the Works-of-art for sale through the Site;
Seller has good and unencumbered title to any Works-of-art offered for sale by Seller through the Site and good and unencumbered title and right to possession to the Works-of-art will pass to the buyer of such Works-of-art at the time of sale;
Seller has no reason to believe that the Works-of-art is not authentic or is counterfeit; and
If applicable, the Works-of-art has been lawfully imported into the jurisdiction in which it is currently located and that any applicable tariffs and taxes have been properly paid.
- Code of Conduct
ArtFortune is committed to maintaining high standards of business, legal and ethical practices. Given the complex international legal and ethical environment in which international art and other markets operate, each Seller is required to fully endorse and agree to the following policy statements regarding Works-of-art to be offered for sale on the Site.
No item of Works-of-art will be sold or offered for sale, if a Seller knows or has reason to believe that such item of Works-of-art was illegally exported or imported.
If a Seller suspects or has knowledge of an illegal export or import, Seller must not offer such item of Works-of-art for sale on the Site.
Seller agrees to comply with the laws of the countries in which the Seller is doing business, including applicable export or import laws.
Seller endorses the regular review by the Art Loss Register of the Site.
- Listing Guidelines
Each Seller is required to fully endorse and agree to the following listing guidelines regarding Works-of-art to be offered for sale on the Site
Seller agrees not to include brand names or other keywords in the title that may affect the keyword searches for the Site.
Seller agrees not to use brand names, misleading or inappropriate aliases for his/her screen name.
Seller agrees to list the items within the appropriate categories on the Site.
Seller agrees to deliver the item of Works-of-art purchased from it unless the buyer of such item of Works-of-art fails to make payment.
Seller agrees to fully disclose all shipping information to the buyer and to not misrepresent shipping costs or where the item of Works-of-art will be shipped from.
Seller agrees to disclose the states where it is are obligated to collect sales taxes. Seller shall be responsible for the collection and remittance of all applicable sales taxes.
Seller agrees not to offer more than one choice of item per lot entry or list a single item but offer additional items for sale in the description.
Seller agrees not to increase the rate to the buyer to pay for the use of credit cards, or other methods of payments used in the ordinary course of business.
Seller agrees not to misrepresent the estimate of any item of Works-of-art.
Seller agrees not to use profanity or obscene images in any listing of Works-of-art.
Seller endorses the regular review by the Art Loss Register of the Site.
VIOLATION OF ANY OF THE FOREGOING POLICIES AND GUIDELINES SET FORTH ABOVE MAY RESULT IN THE IMMEDIATE TERMINATION OF ANY AUCTION BEING CONDUCTED BY A SELLER ON A SITE, BY THE REMOVAL OF THE WORKS-OF-ART FROM THE SITE AND/ OR THE IMMEDIATE TERMINATION OF THE SELLER’S MASTER SELLER AGREEMENT.
MASTER BUYER AGREEMENT
General
This Agreement sets forth the terms and conditions that govern the relationship between ArtFortune Worldwide Corp. (“ArtFortune”) and you (“you” or “Buyer”) with respect to process, terms and conditions under which you may bid, offer to purchase or otherwise participate as a potential buyer in online auctions for items such as art, artifacts, design objects and other similar items (collectively “Works-of-art”) on ArtFortune’s websites (ArtFortune.com, ArtFortune.de, ArtFortune.fr and all other related websites) (collectively, the “Site”). If you wish to access or use the Site to bid on or offer to purchase any items of Works-of-art through the Site (the “Services”), you must accept the terms and conditions of this Agreement, without change. PLEASE REVIEW THE FOLLOWING TERMS CAREFULLY BEFORE USING THE SITE AND ITS SERVICES. BY REGISTERING AND USING THE SERVICES OF THE SITE AS A BUYER, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE HEREIN.
The online auctions portion of the Site provides a venue and mechanism for sellers to conduct auctions for items of Works-of-art posted by them on the Site; and for bidders to bid for such items of Works-of-art in such auctions. As such, ArtFortune is not involved in the actual transactions between buyers and sellers, has no control over the sellers and/or the buyers, and does not guarantee in any manner that sellers will sell or deliver or that any transaction(s) will be completed.
Use of the online auction portion of the Site and the Services is limited to Buyers that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not bid on or offer to purchase items of Works-of-art through the Site. Every Buyer who uses the Services hereby represents and warrants to ArtFortune that he or she is not a minor, is at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law. To register, you must provide your real name, address, phone number, e-mail address and valid credit card number, along with other information that may be required from time to time. Providing inaccurate registration information constitutes breach of this Agreement.
Use of the Site
You may bid on or offer to purchase items of Works-of-art for sale at auction on the Site during the term of this Agreement, subject to the following terms and conditions:
You must honor all bids placed in an auction, and are obligated to complete the transaction with the respective seller if you are the winning bidder. The winning bid is defined as the highest bid in an auction without a reserve, and/or the highest bid in a reserve auction that meets or exceeds the reserve price. You also agree to pay the Buyer’s Premium to ArtFortune with respect to any auction item for which you are the winning bidder (See Buyer’s Premium below). You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.
You are responsible to read and understand, and will be bound by, all terms of sale described in the auction listing including, but not limited to, method of payment, appropriate state or international sales tax, shipping and handling fees, and the applicable seller’s return policy for each auction listing.
You understand and agree that a bid is a legal obligation to purchase the item under the terms described in the auction listing. Bids are not retractable except under circumstances deemed appropriate by ArtFortune in its sole discretion. Possible examples include, but are not limited to, bids made in error, the revocation of a listed item, material changes to the description of an item or blatant errors in a listing. You must contact ArtFortune immediately after placing a bid to retract any bids made in error.
Auctions are extended when a bid is made 10 minutes before the auction ends. The auction closing is postponed for 10 minutes and may be the case several times until a one minute period has lapsed without bidding, at which point the auction closes.
The Site and its Services only may be used for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes and regulations regarding your use of the Site and its Services, including in regard to bidding, and purchasing items. The minimum regulatory venue is deemed to be United States of America and the State of New York.
You will not to allow other persons or entities to bid for items on the Site using your membership name. Unauthorized use of passwords or user accounts is also prohibited. You agree not to share account information with other parties. ArtFortune will not be held liable for any activity resulting from compromised account information.
You will not interfere with the operation of the Site or with any auction being conducted on the Site, through any device, software, virus or other means, including without limitation, sniping, time bombs, etc.
You acknowledge and agree that you have read our Terms of Use and Privacy Policy, which is incorporated by reference into, and made part of, this Agreement. We may change our Terms of Use and/or Privacy Policy in the future without notice to you and you should check our Terms of Use and Privacy Policy sections of the Site frequently for changes. Except as authorized herein and unless otherwise authorized or consented, you agree not to use any information regarding other participants which is accessible from the Site or disclosed to you through the Site except to enter into and complete transactions. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy, otherwise objectionable conduct or otherwise inconsistent with our Terms of Use and/or Privacy Policy.
You will immediately notify ArtFortune if you suspect that your information or data has been compromised.
You are strictly prohibited from placing bids or causing bids to be placed on any item of Works-of-art for the purpose of artificially increasing or otherwise manipulating the bidding process on the Site or the bid price of any item of Works-of-art listed on the Site.
It is your responsibility to pay any sales or use taxes apply to any purchase transactions conducted by you through the Site. ArtFortune is not obligated to determine whether sales or use taxes apply and is not responsible to collect, remit, pay or report any sales or use taxes arising from any such sale transaction.
Buyer agrees not to use brand names, and/or misleading or inappropriate aliases for his/her screen name.
As permitted by applicable law, ArtFortune also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with information requests, to protect ArtFortune’s systems and customers, to allow users to resolve disputes, or to ensure the integrity and operation of the Site, ArtFortune’s business and systems or other purposes deemed reasonable by ArtFortune, ArtFortune may access and disclose any information it considers necessary or appropriate, including, without limitation, user contact details, IP addressing and traffic information, usage history and posted content.
Use of Content
You, the Buyer, grant to ArtFortune and its affiliated entities an irrevocable, non-exclusive, worldwide, royalty-free, perpetual license and right to publish, reproduce or otherwise use all materials, text, information, images, photographs or other content, including prices, of any item purchased by you through the Site (collectively, the “Materials”) for all purposes, in any medium whatsoever. You agree that you as the Buyer will not seek and do not expect any compensation for ArtFortune’s use of any such Materials.
Buyer’s Premium
Art Fortune will charge you and you will be responsible for, a buyer’s premium currently equal to ten percent (10%) of the final selling price of any auction item for which you are the winning bidder (the “Buyer’s Premium”), which will be incurred upon the completion of the applicable auction. ArtFortune reserves the right to change the amount of the Buyer’s Premium, at any time and in its sole discretion, in accordance with the amendment and notification provisions of this Agreement (See Amendment and Notification below).
The applicable Buyer’s Premium will be charged to your credit card on file with ArtFortune and you hereby authorize ArtFortune to charge such credit card upon the completion of any auction in which you are the winning bidder. ArtFortune also reserves the right to invoice you for the Buyer’s Premium payable by you hereunder. In such event, you will pay the Buyer’s Premium owed to ArtFortune upon receipt of any invoice therefor. ArtFortune reserves the right to deliver any invoice to you by: (i) posting an invoice to your account section of the Site; (ii) emailing an invoice to you at the address you have provided in your account settings; or (iii) mailing an invoice to the address provided by you at registration to the Site, as such may be updated from time to time by you in accordance with the procedures designated on the Site. Transmission of any invoice in this manner shall constitute receipt. Additionally, you agree not to interfere with the billing process or attempt to circumvent the Buyer’s Premium in any way.
Unless otherwise stated, the Buyer’s Premium shall be required to be paid in US Dollars. ArtFortune reserves the right to collect on accounts due by various means including but not limited to the use of collection agencies, legal counsel, and direct charge to payment methods that are on file. You will be responsible for all costs of collection (including reasonable attorneys’ fees) in the event you fail to pay any amounts due to ArtFortune hereunder.
In the event a seller is unable or otherwise fails to consummate the sale in which you were the winning bidder, you should contact ArtFortune to obtain a refund with respect to any Buyer’s Premium paid by you with respect to such sale. As a winning buyer, you can request a refund of the applicable Buyer’s Premium in the event that: (i) the seller did not respond after you attempted to contact them (please allow at least seven days for them to respond); (ii) the seller failed to complete the transaction and didn’t sell you the item; or (iii) you returned the item to seller and were issued a refund by the seller. Any request for a refund of the Buyer’s Premium must be made within 60 days of the conclusion of the applicable auction. Determinations of your entitlement to any refund of the Buyer’s Premium shall be made at the discretion of ArtFortune.
Dispute Resolution
It is ArtFortune’s policy that Seller’s describe all items of Works-of-art offered for sale on the Site truthfully and accurately. This should encompass text descriptions, images and pictures of each item of Works-of-art including, without limitation, its physical condition (otherwise known as a condition report), age, provenance, and any other relevant data. ArtFortune’s policy requires Seller’s to photograph all damage to Works-of-art and to clearly present such damage on the Site. Additionally, ArtFortune’s policy requires that the information presented in a Seller’s listing not be misleading, either through the inclusion of actual information provided or by the omission of information.
Because ArtFortune is not a party in the actual transaction between a seller and buyer conducted through the Site and is not the agent of either for any purpose, ArtFortune does not have the duty to resolve and will not be involved in resolving any disputes between participants related to or arising out of any such transaction. ArtFortune has no control over and does not guarantee the quality, safety or legality of items offered for sale through the Site, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction. No statement by any seller regarding condition, kind, value or quality of a lot shall be construed to be an expressed or implied warranty, representation or assumption of the liability by ArtFortune.
It is ArtFortune’s policy to allow sellers and buyers the opportunity to settle differences directly. ArtFortune reserves the right, but has no obligation, to investigate either a seller’s or a buyer’s complaint with respect to any item of Works-of-art offered for sale through the Site. You agree to cooperate with any investigation that ArtFortune may conduct in response to a claim, and to provide ArtFortune with any documentation in your possession or control.
Limitation of Liability
THE SITE AND SERVICE IS “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. ARTFORTUNE SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
ARTFORTUNE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SITE OR SERVICES OR THOSE RESULTING FROM ANY GOODS OR SERVICES SOLD, PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR SERVICES WHETHER SUCH DAMAGES ARISE UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Please note that this disclaimer of warranties and limitation of liabilities applies to ArtFortune’s service providers and to each of their respective affiliated entities. ArtFortune does not guarantee or represent in any manner that the Site or Service will operate error-free or that the Site or Service will be uninterrupted.
Indemnity
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD ARTFORTUNE AND OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH (A) YOUR USE OF THE SITE AND SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CLAIM RELATING TO ANY WORKS-OF-ART BID ON OR PURCHASED BY YOU ON THE SITE); (B) YOUR BREACH OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, YOUR BREACH ANY GUIDELINES AND/OR POLICIES INCORPORATED BY REFERENCE HEREIN); (C) YOUR VIOLATION OF ANY STATE, FEDERAL, FOREIGN OR INTERNATIONAL LAWS, CODES OR REGULATIONS; AND/OR (D) YOUR VIOLATION OF ANY THIRD PARTY’S RIGHTS, INCLUDING, BUT NOT LIMITED TO, INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS.
Release
BECAUSE ARTFORTUNE IS NOT THE SELLER IN TRANSACTIONS BETWEEN BUYERS AND SELLERS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, YOU RELEASE ARTFORTUNE (AND ITS SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE _1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY ARTFORTUNE.
Representations; Warranties and Additional Agreements
You represent and warrant that you have the full power and authority to enter into this Agreement and to grant to ArtFortune the rights set forth herein. You agree to comply with the Site’s policies and guidelines as they may exist from time to time (including, without limitation, our Privacy Policy and Terms of Use).
Amendment and Notification
ArtFortune reserves the right to change any of the terms and conditions contained in this Agreement by posting on the Site either a new agreement or any changes or amendments thereto. Any changes will be effective upon posting of the revisions on the Site. You are responsible for reviewing the Site and any applicable changes. Changes to this Agreement may be posted on the Site without notice to you. YOUR CONTINUED USE OF THIS SITE AND ITS SERVICES FOLLOWING ARTFORTUNE’S POSTING OF ANY CHANGES OR AMENDMENTS WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR AMENDMENTS. IF YOU DO NOT AGREE TO ANY CHANGES OR AMENDMENTS TO THIS AGREEMENT, DO NOT CONTINUE TO USE THE SITE OR ITS SERVICES AS A BUYER.
All informal communication between the parties will be via email to the extent feasible.
Termination of Agreement
ArtFortune reserves the right, in its sole discretion, to terminate this Agreement or to suspend use of the Site and/or Service to any Buyer at any time and for any reason without notice or explanation. The foregoing shall be in addition to any other rights or remedies in the event you breach this Agreement or the documents it incorporates by reference or if ArtFortune believes that your actions may cause legal liability for ArtFortune or any Site users.
Notification of any termination or suspension will be emailed to you at the address you have provided in your account settings.
The following Sections survive any termination of this Agreement: Dispute Resolution; Limitation of Liability, Indemnity; Release; Representations, Warranties and Additional Agreements; and Miscellaneous.
Miscellaneous
The laws of the State of New York govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws.
YOU AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR OUR SERVICES SHALL BE SETTLED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE ARBITRATION SHALL BE CONDUCTED IN NEW YORK COUNTY, NEW YORK, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF. EITHER YOU OR ARTFORTUNE MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN NEW YORK COUNTY, NEW YORK. IF NECESSARY TO PROTECT THE RIGHTS OR WORKS-OF-ART OF YOU OR ARTFORTUNE PENDING THE COMPLETION OF ARBITRATION AND YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.
If anyone or more of the provisions contained in this Agreement for any reason is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
You shall not assign this Agreement to another entity or person without the prior written consent of ArtFortune. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective heirs, executors, beneficiaries, successors and assigns.
You acknowledge and agree that no joint venture, partnership, agency, franchise, or employment relationship is created or intended by this Agreement, and agree not to represent to third parties that you are an agent, partner, joint venturer or employee of ArtFortune or any of ArtFortune’s affiliated entities.
This Agreement and the general terms, conditions set forth on the Site, including but not limited to the policies and guidelines referred to herein, constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes and cancels all prior and contemporaneous agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.
ArtFortune’s failure to enforce the strict performance of any provision of this Agreement (or any policy or guideline referred to herein) will not constitute a waiver of ArtFortune’s right to subsequently enforce such provision or any other provisions of this Agreement (or any policy or guideline referred to herein).
ArtFortune has the right, but not the obligation, to monitor any activity and content associated with the Site. ArtFortune may, but shall not be obligated to, investigate any reported violation of this Agreement or any of its policies and guidelines (including, without limitation our Privacy Policy and Terms of Use) or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access and/or removal of any materials on the Site, including bids, all of which may be taken by ArtFortune without liability to you or any other person or entity. ArtFortune reserves the right and has sole discretion, to remove, screen or edit any content that violates these provisions or is otherwise objectionable. In addition, ArtFortune may, in its sole discretion, remove any item of Works-of-art or cancel any auction in progress that it determines has been posted on the Site in violation of this Agreement or any of its policies and guidelines (including, without limitation our Privacy Policy and Terms of Use). In the event of a removal or cancellation, ArtFortune will not have any liability to you, any seller or any other person or entity with respect to the offer of such item or the cancellation of the auction.