Terms & Conditions
Terms and Conditions of Artwork Purchase
1. Definitions and Interpretation
Agreement means any Purchase Option which is accepted by the Business under clause 3(b).
Business means Fine Art Investments Pty Ltd (A.C.N. 096 829 159), trading as HartFinds (A.B.N. 64 096 829 159).
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Customer means the entity or person requesting that Goods and / or Services be supplied to it by the Business.
Default Rate means the standard default contract rate which is fixed from time to time by the Queensland Law Society.
Goods means the quality artwork owend by the Seller and sold by the Business.
Force Majeure means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of the Business including, but not limited to an act of God, sabotage, any fire, failure or shortage of power supplies or raw ingredients, abnormally inclement climate or weather conditions, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action, strike or other labour difficulty or shortage, unavailability of transport providers, failure or inability to obtain any licence, action or inaction of a government or other authority (such as a court of competent jurisdiction) or the threat of any of the foregoing.
Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world, including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and all renewals and extensions.
Invoice has the meaning provided to it in clause 4(c).
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
Purchase Price has the meaning provided to it in clause 4(a).
Services means any services provided by the Business being the platform for purchasing quality artwork.
Seller means the lawful owner of the Goods.
Terms means these Terms and Conditions of Sale between the Business and the Customer.
2. Application
(a) These Terms apply to and govern the supply by the Business of Goods and Services to the Customer from time to time and, more specifically, apply to and govern the supply by the relevant Business of Goods and / or Services to the Customer which are to be provided under an Agreement and accepted by the Business.
(a) The Business, trading as HartFinds, provides a secure and trusted platform for purchasing quality artwork. The Seller of the Goods use the services of the Business to advertise and sell their Goods on their behalf.
(b) The Business offers the Customer three (3) options to purchase (Purchase Options) the Goods being:
i. Buy It Now - The Customer agrees to purchase the Goods at a fixed price;
ii. Make an Offer – The Customer negotiates directly with the Seller by submitting an offer which the Seller may or may not accept; and
iii. Timed Auctions - The Consumer places a bid/s during a set auction period and the highest bidder at the auction close wins the Goods.
(c) The Customer acknowledges and agrees that by selecting one of the Purchase Options, the Customer makes an irrevocable offer to the Business, for the Business to supply it with the Goods and / or Services on these Terms.
(d) A contract will be formed between the Business and the Customer in respect of the Purchase Option, upon the earlier of:
i. the Business notifying the Customer, either verbally or in writing, that it accepts the Customer’s Purchase Option;
ii. the acceptance by the Seller of any offer made by the Customer;
iii. being declared to be the highest and winning bidder during the Timed Auction;
iv. the Business accepting, in full or part, payment from the Customer for any Goods or Services the subject of the Purchase Option;
v. the Business making delivery of the Goods the subject of the Purchase Option to the Customer; or
vi. the Business performing the Services the subject of the Purchase Option.
(e) The Business is not bound to accept any Purchase Option and may decide not to accept any Purchase Option for any reason and in the sole discretion of the Business.
i. the Customer’s agreement to purchase the Goods at a fixed price; or
ii. the acceptance by the Seller of any offer made by the Customer; or
i. being declared to be the highest and winning bidder during the Timed Auction,
the Business will charge the Customer the purchase price (Purchase Price).
(b) The Purchase Price of the Goods purchased by the Customer under the relevant Purchase Option and Services rendered is the total of the following:
i. The agreed purchase price of the Goods in accordance with the relevant Purchase Option; and
ii. A 10% buyer’s premium (including GST) is calculated on the final price of the Goods purchased in accordance with the relevant Purchase Option; and
iii. If applicable, a 5% royalty payment in accordance with the Resale Royalty Scheme, which applies to resales of artworks by eligible Australian artists if they were first sold after June 9, 2010; and
iv. If paying by credit card, a 1.6% fee.
(c) Upon the Customer’s agreement to purchase Goods under the relevant Purchase Option:
i. the Business’ HartFinds platform will issue directions to the Customer for the payment of the Purchase Price; and
ii. the Business may invoice the Customer for 10% buyer’s premium portion of the Purchase Price (Invoice).
(d) If the Customer fails to make any payment by the Invoice’s due date, breaches any term of an Agreement, then, without prejudice to any other right or remedy available to the Business, the Business may, in its sole discretion, elect to do any one or more of the following:
i. suspend any further deliveries to the Customer arising from any Agreement;
ii. cancel any Agreement in respect of any Goods or Services not yet supplied to the Customer in whole or in part by the Business;
iii. terminate any Agreement in accordance with clause 13(a);
iv. charge the Customer interest (both before and after any judgment) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which such amounts become overdue until the Business receives payment of all such amounts (including all interest) by way of cleared funds;
(e) The Customer is not entitled to deduct from any payment or sum owing to the Business any amount as a set-off or counterclaim or adjustment, without prior written consent of the Business.
5. GST
(a) If the Business has any liability to pay Goods and Services Tax (GST) on the supply of any Goods or Services to the Customer, the Customer must pay to the Business an amount equivalent to the GST liability of the Business at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
6. Delivery, Insurance and Force Majeure
(a) The Business is not liable to the Customer for the delivery, shipping or insurance of the Goods.
(b) Unless otherwise specified in writing by the Business, the Customer must:
i. Contact the Seller regarding delivery and insurance of the Goods;
ii. Organise their own packaging, delivery and insurance of the Goods with the Seller;
iii. Pay all necessary costs in relation to their own packaging, delivery and insurance of the Goods; and
iv. Manage the packaging, delivery and insurance of the Goods themselves.
(c) If elected by the Seller, for an additional fee payable by the Customer, the Business may coordinate professional packaging, shipping, and delivery of the Goods (HartFinds-Managed Shipping).
(d) If HartFinds-Managed Shipping is elected by the Seller, the Busienss will contact the Customer to discuss:
i. which option of shipping the Customer would prefer;
ii. courier options; and
iii. costs.
iv. will be provided to the seller and buyer after purchase.
(e) In relation to HartFinds-Managed Shipping:
i. all costs asscocited with HartFinds-Managed Shipping are payable by the Customer; and
ii. It is the responsibility of the Customer to ensure the Goods supplied by the Business can be unloaded at the address nominated by the Customer. The Business will not accept responsibility for the cost associated with the unloading of equipment. Any haulage and/or special lifting requirements will be charged to the Customer’s account; and
iii. The Customer or its nominee must be onsite to receive delivery of the Goods. Please note that delivery times are estimates only. The Business is not liable for any loss or damage that may occur
(f) The Business is not liable for any failure to deliver Goods because of a Force Majeure.
(g) The Business is not liable to the Customer for any loss or damage (including economic loss or consequential damage) arising directly or indirectly from the Business’ supply, failure to supply or delay in supply of Goods.
7. Return policy & Dispute Resolution
(a) The parties acknowledge that all sales are final.
(b) Notwithstanding clause 7(a), as the Business does not own the Goods and is selling them on behalf of the Seller, should the Customer be of the opinion that the Goods are significantly different from their advertised description, the Customer must notify the Business of their concerns within 48 hours of receiving the Goods (Dispute Notice).
(c) Unless the Customer gives the Business a Dispute Notice within 48 hours of receiving the Goods, the Customer irrevocably authorises the Business to release payment to the Seller for the sale of the Goods.
(d) If the Customer gives the Business a Dispute Notice within 48 hours of receiving the Goods, the parties will undertake the Dispute Resolution Procedure.
(e) In relation to the Dispute Resolution Procedure, the parties:
i. will attempt to resolve the matter between the Customer and the Seller:
ii. agree to allow either party to refer the matter to mediation if the matter cannot be resolved;
iii. agree that if either party refers the matter to mediation, both parties will participate in the mediation process in good faith;
iv. the parties must cooperate to ensure the dispute-resolution procedure is carried out as quickly as is reasonably possible;
v. the parties agree they must not start court proceedings (except proceedings seeking interlocutory relief) unless the party initiating the action has genuinely attempted to resolve the dispute.
(a) Other than any warranties that cannot be excluded by law, the Business provides no warranties, including any warranty against defect, to the Customer in respect of any Goods supplied by the Seller to the Customer.
(b) The Business makes no representation about a guarantee or warranty except as is stated in this document. This warranty applies instead of any warranty or condition which applies at law, except where it is prohibited by law to do so.
(c) The Customer will indemnify the Business for any claims whatsoever and howsoever made by a third party against the Business for any default of the Business or the Customer relating to or directly or indirectly arising from any contract and/or arrangement made between the Business and the Customer or any Goods or Services provided by the Business to the Customer or by the Customer to a third party.
9. Risk
(a) The risk in the Goods supplied passes to the Customer once the Goods leave the Seller’s premises. It is the Customer’s responsibility to arrange suitable insurance during delivery.
(a) If at any time within six months of the date of a payment to the Business, the Customer is wound up, enters into Voluntary Administration or is made Bankrupt and the Business is obliged to or agrees to make a refund of any money received from the Customer, the Business may treat such receipt as if it had not occurred. The Business is then entitled to enforce its rights under these Terms as if the receipt had never occurred.
11. Costs
(a) The Customer indemnifies the Business against all Consequential Loss, Loss, liabilities, costs, charges, expenses or fees (including legal fees on a full indemnity basis) that the Business may suffer or incur arising out of or in any way related to the Customer’s breach of these Terms.
12. Intellectual Property
(a) Unless expressly stated by an agreement, the parties acknowledge and agree that nothing in these Terms shall be construed as a transfer from the Business to the Customer of the ownership of, or title to, any of the Intellectual Property Rights in the Goods, material created as part of the Services or any other Intellectual Property Rights owned by or licensed to the Business or a third party and the Customer agrees that it must not infringe or use the Intellectual Property Rights of the Business or any other third party which exist in the Goods or materials created as part of the Services without the prior consent of the Business or relevant third party.
(a) Without limiting the Business’ other rights under these Terms, the Business may terminate any Agreement with immediate effect by written notice to the Customer if:
i. the Customer has breached any term of these Terms;
ii. a “Force majeure” event occurs as defined in clause 6(f) above.
(b) Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.
(a) Without limiting clause 4(d), the Business may cancel or suspend any Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where the Business believes (for any reason) that it or the Seller will be unable to supply the relevant Goods or provide the Services to the Customer, provided that if the Business cancels an Agreement under this clause 14(a) it will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer. The refund of any such amounts will be the Customer’s sole remedy against the Business in respect of any cancellation pursuant to this clause 14(a).
(b) An Agreement that has been submitted cannot be cancelled by the Customer except with the prior written consent of the Business and without prejudice to any other rights the Business may have, the Customer indemnifies the Business for any Loss incurred by the Business in connection with such cancellation.
15. Applicable Law
(a) These Terms are governed by and construed in accordance with the laws of Queensland.
16. Joint and Several Liability
(a) If there is more than one Customer named in these Terms, their obligations are joint and several.
17. Severance
(a) Any provision of these Terms which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of these Terms.
18. Privacy
(a) The Customer acknowledges and agrees that personal information (as that term is defined in the Privacy Act 1988(Cth)) regarding the Customer if the Customer is an individual, or the employees, contractors, officers and agents of the Customer if the Customer is an organisation, may be collected, held, used and disclosed by the Business for the purposes set out in the Business’ privacy policy. The Customer consents, and where applicable will make all reasonable endeavours to have its employees, contractors, officers and agents consent, to the Business collecting, holding, using and disclosing any such personal information for all purposes specified in the Business’ privacy policy.
19. Miscellaneous
(a) In these Terms:
i. Words in the singular include the plural and vice versa, according to the requirements of the context;
ii. Words importing a gender include every gender;
iii. References to a person includes an individual, firm or a body corporate or unincorporated;
iv. A reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;
v. A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;
vi. Headings are inserted for convenience and do not affect the interpretation of these Terms; and
vii. Unless otherwise provided, all monetary amounts are in Australian dollars and a reference to payment means payment in Australian dollars.
(b) The Customer must not assign or otherwise deal with any of its rights or obligations under these Terms without the Business’ prior written consent. The Business may, to the extent permitted by law, assign, subcontractor deal with any of its rights or obligations under these Terms (including any right to be paid or chose in action) at any time in circumstances where, in the opinion of the Business acting reasonably, the assignment will not adversely affect the rights of the Customer.
(c) A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.