Buy-Now Marketplace Conditions of Business for Sellers
1. Defined Terms
In this agreement, “we”, “us” and “our” refers to Sotheby’s, Inc.; and “you” and “your” refer to the individual, corporation or other entity who is consigning property to us pursuant to this agreement. If there is more than one consignor, “you” and “your” refer to all consignors; if the consignor is an agent acting on behalf of a principal, “you” and “your” refer to both principal and agent.
The following capitalized words will have the specific meaning shown here:
Authenticity Guarantee: the guarantee we provide as principal to the Buyer for certain items designated as being offered with such guarantee on the Buy-Now Marketplace, as set out in the Buy-Now Marketplace Conditions of Business for Buyers.
ARR: the artist resale right royalty payable by the Buyer on certain items located in the United Kingdom.
Buyer: the buyer of record for an item of Property.
Buy-Now Marketplace: the online marketplace operated by Sotheby’s and located at our group websites and apps, including but not limited to http://www.sothebys.com, http://www.sothebys.cn, and WeChat Mini App.
Buy-Now Marketplace Conditions of Business for Buyers: the terms and conditions for the Buyer and prospective buyers applicable to the Buy-Now Marketplace, available online at our group websites and apps, including but not limited to http://www.sothebys.com/en/marketplacebuyerterms and Buy-Now WeChat Mini App. The Buy-Now Marketplace Conditions of Business for Buyers includes the Authenticity Guarantee.
Listing: the advertisement of the Property and Listing Price on the Buy-Now Marketplace.
Listing Period: the period of time for which we will list the Property on the Buy-Now Marketplace. The Listing Period commences when the listing becomes live on the Buy-Now Marketplace and ends on the earlier of when the Property is sold or the expiration of the Listing Period.
Listing Price: the asking price for the Property, which includes the initial Listing Price and any reduced Listing Price during the Listing Period, net of any applicable taxes, VAT or amount in lieu of VAT, or ARR.
Net Purchase Price: for Property sold, the final sale price we collect from the Buyer, but not including any applicable taxes, VAT or amount in lieu of VAT, or ARR.
Net Sale Proceeds: the amount payable by us to you on the sale of the Property, as set out in Part A.
Property: an item of property consigned by you under this agreement and listed in the Property Schedule in Part B. Where more than one item of property is consigned, references to “Property” in this agreement will mean with respect to each item of Property.
Purchase Date: the date the Buyer completes the online purchase of the Property, including payment in full of the Purchase Price.
Purchase Price: for Property sold, the final sale price we collect from the Buyer, including any applicable taxes, VAT or amount in lieu of VAT, or ARR.
Reserve: the confidential minimum price agreed with you at which the Property can be sold, net of any applicable taxes, VAT or amount in lieu of VAT, or ARR.
Sale Costs: the costs related to this consignment, plus any applicable VAT, listed in the Sale Costs Schedule in Part B.
Seller’s Commission: the amount we will charge you as a sales commission for the Property sold, which we will retain for our account, plus any applicable VAT.
Sotheby’s, Inc.: the company incorporated in New York, with its headquarters at 1334 York Avenue, New York, NY 10021.
Sotheby’s Group: Sotheby’s Holdings UK Limited and any entities in which it holds, from time to time, directly or indirectly, more than 50% of the issued share capital; and each, a “Sotheby’s Group Company.”
VAT: for Property sold in a location in which a Value Added Tax regime applies, any applicable Value Added Tax or an amount in lieu of Value Added Tax, as the case may be, at the prevailing rate.
(a). You retain us as your agent to offer and to sell the Property on the terms set out in this agreement and in the Buy-Now Marketplace Conditions of Business for Buyers. While we are your agent, which will be during the period from when you execute this agreement until the sooner of a sale of the Property or the expiration of the Listing Period, you may not offer or attempt to offer the Property for sale other than pursuant to the terms of this agreement, unless we have agreed otherwise.
(b) For this consignment, we will determine the Listing and other descriptions of the Property and the marketing and promotion of the Property, unless specifically agreed with us in writing. We may (though we have no duty to), either before or after the sale, consult an expert or experts and conduct due diligence and research in relation to the Property or its provenance. We may market your Property through any reasonable means, including listing the items on other websites and social media channels.
3. Listing Price and Reserves
(a). The initial Listing Price will be the amount shown on the Property Schedule. During the Listing Period, we may from time to time reduce the Listing Price, provided that the Listing Price will not be lower than the Reserve.
(b). The Reserve will be the amount shown on the Property Schedule or, if it is not shown there, then the amount of the Listing Price, unless otherwise agreed with you. If the Reserve and the initial Listing Price are the same amount, then the Property will be excluded from our “Make an Offer” feature and promotional discounts.
(c). If the Reserve is an amount lower than the initial Listing Price, you authorize us to permit prospective buyers to use our “Make an Offer” feature, which enables prospective buyers to make an offer below the Listing Price for the Property, and to offer promotional discounts to allow a Buyer to apply discounts to purchase the Property. When used, Buyers may purchase Property for less than the Listing Price but not less than the Reserve (subject to Condition 3(d)). Once the Property is listed on the website, we will manage the negotiation process on your behalf in an effort to obtain at least the Reserve for each item of Property (subject to Condition 3(d)).
(d). We may sell Property at a price below the Reserve provided we pay you the Net Sale Proceeds you would have been entitled to receive had the Property sold at a Net Purchase Price equal to the Reserve.
4. Representation and Warranties
You represent and warrant to us and each Buyer that at all relevant times (including the time of consignment and at the time of the sale):
(a) you have sole, complete and lawful right, title and interest in the Property; or, if you are acting as an agent, your principal has sole, complete and lawful right, title and interest in the Property, and you are properly authorized by your principal to sell the Property on these terms;
(b) there are no claims or potential claims, legal proceedings, liens (except for estate tax liens, if any, with respect to which the underlying obligations will be satisfied by you as they come due, if applicable), security interests, encumbrances or other restrictions on or regarding the Property, and you have no knowledge of any facts or circumstances that might give rise to any claims in connection with the Property;
(c) good title to and right to possession of the Property will pass to the Buyer free of all third-party rights, liens, security interests, claims, restrictions and encumbrances;
(d) you have fully disclosed to us all information known to you or in your possession that might affect the sale or value of the Property, including but not limited to information concerning the Property’s condition (including any damage or restoration), provenance, ownership, authenticity, attribution, authorship, origin, date, age, period, culture, source, and export or import history, and the existence of any endangered or protected species in the Property, and you shall continue to disclose any such information that becomes known to you through the time of sale;
(e) if the Property has been imported into the country in which it is located (or for Property located in the European Union, if it has been imported into the European Union from outside of the European Union), it was lawfully imported, required declarations were made, any duties and taxes were paid, and it was lawfully and permanently exported from the country or jurisdiction in which it had been located;
(f) you will pay or have paid any and all taxes and/or duties due on the Net Sale Proceeds you receive, and you have notified us in writing of any taxes and/or duties that are payable by us on your behalf in any country other than the country of the applicable sale location;
(g) any images and descriptions of the Property you provide to us do not infringe any third-party rights; and unless you advise us in writing to the contrary at the time of consignment, you are not aware of any restrictions on our right to reproduce or use photographs, images or videos of the Property produced by us to the extent permitted by applicable law;
(h) unless you advise us in writing to the contrary at the time of consignment, any electrical or mechanical goods or components are in a safe operating condition if reasonably used for the purpose for which they were designed, and are free from any defect not obvious on external inspection which could prove dangerous to human life or health;
(i) no applicable law, regulation or code in any jurisdiction has been or will be violated in your performance under this agreement;
(j) the sale of the Property is not designed to facilitate tax crimes;
(k) you have no knowledge or reason to suspect that (i) the Property is connected with the proceeds of criminal activity, or (ii) you, or any co-owner(s) or principal(s) (or, if you are an entity, any person(s) or entity(ies) with a beneficial or ownership interest in you), are under investigation, charged with, or convicted of any substantive or predicate money laundering crime, terrorist activity, or act in violation of any anti-bribery or anti-corruption law, including the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act;
(l) you (and your principal, if applicable) are not (i) a person or entity subject to trade sanctions, embargoes or restrictions in any jurisdiction (“Sanctioned Person”), or (ii) owned or controlled by a Sanctioned Person; and the Net Sale Proceeds will not be transferred to or used for the benefit of a Sanctioned Person;
(m) if you are acting as agent on behalf of a principal, you have conducted appropriate due diligence on your principal in accordance with all applicable anti-money laundering, anti-terrorism and sanctions laws and regulations, you will retain and make available upon request the documentation evidencing such due diligence for at least 5 years, and all commissions payable to you for this consignment have been authorized by your principal; and
(n) you have full legal authority without any further action or other party’s consent to enter into and perform this agreement and to make these representations and warranties; if you are an entity, the individual signing on your behalf is authorized to do so and the entity is duly constituted, validly existing and in good standing in the jurisdiction where it is incorporated or formed.
You shall indemnify and hold us, each Sotheby’s Group Company, our and their respective officers and employees, and the Buyer harmless against any and all claims, causes of action, liabilities, damages, losses, and expenses (including but not limited to reasonable attorneys’ fees), arising out of or in connection with an inaccuracy or breach of any of your representations or warranties or breach of your obligations under this agreement. This indemnity will apply with equal force should you engage a third party recommended by us in connection with any of your obligations under this agreement to the fullest extent permitted by law.
6. Seller's Loss or Damage Liability
(a) If the Property will remain in your custody or control during the Listing Period, this Condition 6 will apply.
(b) The Property will be deemed to be in your custody or control until it is released to the Buyer or the Buyer’s designated shipper or agent. You assume liability for loss of or damage to the Property commencing from the date you sign this agreement and ceasing on the later of when the Listing Period ends or when the Property is released to the Buyer or the Buyer’s designated shipper or agent. You acknowledge that the Property will not be in our custody or control at any time. For the avoidance of doubt, any shippers or storage facilities we recommend to you or with whom we coordinate service on your behalf will not be deemed our agents, and we will have no liability for loss of or damage to Property while it is in the custody or control of such shippers or storage facilities.
(c) You shall maintain insurance cover for the Property at least equal to the Listing Price until the Buyer has paid for it in full. If you do not maintain such insurance, you acknowledge that you nonetheless assume liability for loss of or damage to the Property as set forth in Condition 6(b) above. You agree to indemnify and hold us harmless against all claims, causes of action, losses and liabilities, including reasonably attorneys’ fees, arising from loss of or damage to the Property, and irrevocably waive all rights and claims that you might have against us in connection with or arising out of such loss or damage.
(d) From the date of this agreement until the later of when the Listing Period ends or when the Property is released to the Buyer or the Buyer’s designated shipper or agent, you agree to maintain the Property in the same condition as it was when we viewed it. In the event of any loss of or damage to the Property after we have viewed it, you will within 24 hours notify us in writing. If you have not provided us such written notice prior to the shipment or pick-up of the Property, we will charge you a Withdrawal Fee, as defined in Condition 8 below, payable within 10 business days of our request to you.
7. Sotheby's Loss or Damage Liability
(a) If the Property will be in our custody or control at any time during the Listing Period, this Condition 7 will apply.
(b) Subject to Condition 7(c) and unless Condition 6 applies, we assume liability for loss of or damage to the Property, commencing from when we or our designated agent receive the Property and ceasing (i) for sold Property, when risk passes to the Buyer following its sale; (ii) for unsold Property, on the earlier of 60 days after the expiration of the Listing Period or when the Property is released to you; (iii) 6 months after our receipt of the Property if it is not consigned for sale or (iv) if we release the Property back to you for any agreed-upon purpose. In the case of (iv), you will assume liability for loss or damage to the Property in accordance with Condition 6 until such time as we or our designated agent receive the Property, if applicable.
(c) We will not be liable for any loss or damage (i) occurring during any process undertaken by independent contractors engaged with your consent, including but not limited to for restoration, conservation, framing or cleaning; (ii) caused to frames or to glass covering prints, paintings or other flat works; or (iii) caused by changes in humidity or temperature (as long as we take reasonable care in handling the Property), normal wear and tear, gradual deterioration or inherent vice or defect (including woodworm), war, any act or acts of terrorism (as defined by our insurers), nuclear fission, radioactive contamination, or chemical, bio-chemical or electromagnetic weapons.
(d) If any loss or damage occurs to the Property during the period identified in Condition 7(b), we will determine the extent of depreciation to the Property, if any, caused by the loss or damage, and our liability to compensate you in respect of that loss will be limited to the Property Value, less the Seller’s Commission and Sale Costs payable by you, if any. For the purposes of Condition 7, the “Property Value” will mean the amount equal to: (i) for sold Property, the Net Purchase Price, (ii) for unsold Property after the expiry of the Listing Period, the Reserve, or (iii) for Property not yet sold, the Listing Price.
(e) If, in our reasonable opinion, the loss or damage to the Property results in a depreciation of the Property of less than 50%, we will pay you the amount of depreciation and offer the Property for sale or, at your request, return it to you. If, in our reasonable opinion, the loss or damage to the Property results in a depreciation of the Property of 50% or more, we will pay you the Property Value, less the Seller’s Commission and Sale Costs payable by you, if any, and all title and interest to the Property will pass to us.
(f) If you disagree with our opinion as to the depreciation of the Property, we will solicit an appraisal from an independent expert recognized in the relevant field whose selection you approve, such approval not to be unreasonably withheld. You and we agree that such appraisal will be the final determination.
(g) Upon your receipt of payment from us in accordance with this Condition 7, you, on your own behalf and on behalf of your insurer(s), irrevocably release us from all liability for loss of or damage to such Property and irrevocably waive all rights and claims that you might have against us in connection with the same.
(h) Unless otherwise agreed with you in writing, we reserve the right to display and store the Property at any of our gallery or showroom locations, including pop-ups or via partnership at third-party locations. The Property will be deemed to be in our custody or control in accordance with this Condition 7 while at any such location. In the event the Property is sent to a third-party location, we will notify you (including via email) in advance.
(a) You may not withdraw the Property from sale within the first 30 days of the Listing Period. If you do so, you agree to pay a “Withdrawal Fee,” which will amount to the sum of the Seller’s Commission as if the Property sold at the Reserve plus any Sale Costs we incurred prior to the withdrawal of the Property. You acknowledge that the harm to us resulting from withdrawal of Property is difficult or impossible to accurately estimate and agree that the Withdrawal Fee is a reasonable estimate of the harm that would result from such withdrawal. You may withdraw the Property from sale without incurring a Withdrawal Fee after the initial 30 days of the Listing Period.
(b) We may withdraw any Property from sale at any time for any reason. If we withdraw an item of Property from sale because we reasonably determine that (i) any of your representations or warranties are inaccurate, incomplete or breached, (ii) you have materially breached any provision of this agreement and such breach has not or cannot be cured prior to two business days before the start of the Listing Period, or (iii) the Property suffers loss or damage and is not in the condition in which it was when we agreed to offer it for sale, then we will charge you the Withdrawal Fee. In any such case, we will furnish to you the basis for our determination (unless we are restricted from doing so by legal or regulatory authority) and provide you with an opportunity to respond.
(c) In any case where you owe us the Withdrawal Fee, you shall pay us within 10 business days of our request to you. Following your payment of the Withdrawal Fee, if applicable, we will return the withdrawn Property to you at your expense, subject to Condition 15. We will determine the timing and content of any announcement regarding any withdrawal of Property, provided that such announcement will not disparage you.
9. Seller Order Fulfillment
(a) For large items of sold Property, such as furniture, we will coordinate shipping with the Buyer and the Buyer’s designated shipper (the “Delivery Service Provider”). Shipping includes appropriate packing as determined by the Delivery Service Provider. The Delivery Service Provider will contact you to arrange a time for them to have access to the Property for packaging and pick-up. You shall provide such access within 5 business days immediately following the Purchase Date or, if required by the Delivery Service Provider, the date on which the Delivery Service Provider will be able to complete the pick-up but no later than 30 calendar days after the Purchase Date. For large items of sold Property, the Delivery Service Provider will be responsible for completing their own condition report at the time of pick-up.
(b) For small items of sold Property, such as table lamps, small decorative objects and accessories, we will provide you with a completed pre-paid shipping label to use. The designated shipper listed on the pre-paid shipping label is deemed the Delivery Service Provider for such items. You shall pack and ship such Property within 5 business days immediately following the Purchase Date. Sotheby’s will reimburse you for the costs of reasonable Federal Express packing services, such as packing material, for which you submit a valid receipt.
(c) You may elect to offer Property with a local pick-up option. If you do so, you will provide us with the relevant information a Buyer would need for local pick-up, which may include pick-up contact information, pick-up address, pick-up times and, if applicable, warehouse information. In any such case, the Property will be listed with a local pick-up option that the Buyer may select (in lieu of shipping) at checkout, unless we notify you otherwise. Notwithstanding anything to the contrary in this agreement, if the Buyer selects local pick-up, the sale of such Property will be a final sale and not eligible for cancellation or return, unless Condition 13 or Condition 14 applies. Upon the Buyer’s purchase of Property and selection of local pick-up, we will provide the local pick-up information to the Buyer and the Buyer’s contact information to you, in order for you and the Buyer to coordinate local pick-up of the Property at a time agreed by you and the Buyer. When the Buyer picks up the Property, the Buyer must provide you with a copy of the Buyer’s email confirmation as verification of the purchase. The date that the Buyer picks up the item at the local pick-up premises is deemed the date the Buyer acquires physical possession of the Property.
(d) Title and risk of loss to the Property will transfer to the Buyer upon your transfer of the Property to the Delivery Service Provider, if applicable, unless the Buyer is a consumer residing in the EU or the UK and where we provide you with a shipping label for use for small items of sold Property, in which case title and risk of loss passes to the Buyer after the Buyer or the Buyer’s agent receives physical possession of the Property. If local pick-up applies, title and risk of loss passes to the Buyer upon the Buyer’s or the Buyer’s agent’s first contact with the Property at the local pick-up premises.
(e) If you do not ship or make the Property available as required, we will charge you a Withdrawal Fee, as defined in Condition 8 above, payable within 10 business days of our request to you and the sale of the Property to the Buyer will be cancelled.
10. Sotheby’s Order Fulfillment
If an item of Property is sold while in Sotheby’s possession, we will coordinate with the Buyer for fulfillment and shipping. You agree to provide us with reasonable assistance as we may request in connection with our fulfillment of the order.
11. Unsold Property
(a) If the Property remains unsold after the expiration of the Listing Period, we will notify you. In such case, you may either consign the unsold Property to be offered for sale again or, if we have possession of the Property, collect it.
(b) If we have possession of the Property and within 60 days of the expiration of the Listing Period we do not agree to reoffer the Property for sale and you do not collect it, we may (i) return the Property to you, (ii) sell it on the Buy-Now Marketplace at 50% of the initial Listing Price, (iii) store the Property at your risk and expense, for which we will charge you our standard storage fees applicable at the relevant time and place, or (iv) transfer it to a third-party warehouse at your risk and expense.
(c) If we decide to offer the Property pursuant to Condition 11(b)(ii), we will be entitled to sell such Property after 30 days’ notice to you. If the Property sells, we will be entitled to deduct from the sale proceeds the Seller’s Commission and Sale Costs payable by you, if any, and any other costs we incur in selling the Property, and any excess will be remitted to you. Any such sale conducted by a Sotheby’s Group Company will be conducted under the Buy-Now Marketplace Conditions of Business for Buyers.
12. Payment of Net Sale Proceeds to You
(a) Payment of the Net Sale Proceeds will be made only to you in accordance with the payment instructions you provide us in the form attached to the agreement as Exhibit A, provided that (i) you have satisfied our Know Your Client requirements, (ii) we have received payment of the Purchase Price in full and cleared funds from the Buyer, (iii) the Consumer Cancellation Period as defined in Condition 13, if applicable, has expired without the Buyer exercising the right of cancellation, (iv) we have not been notified of an issue upon which we may rescind the sale pursuant to Condition 14 and (v) if applicable, you have provided the required information under Condition 17.
(b) If we do not receive your payment instructions for electronic funds transfer, we will pay you by check sent to the address that you provide to us. You irrevocably release us from and waive all claims that you might have against us for any loss or damage you sustain due to our reliance upon your payment instructions, except where the loss or damage was caused by our gross negligence or willful misconduct.
13. Consumer Cancellation
(a) If a Buyer is a “consumer” (namely a Buyer acting for purposes that are wholly or mainly outside the Buyer’s trade, business, craft or profession) who habitually resides in the European Union or United Kingdom (an “EU/UK Buyer”) and you are a “trader” (namely a seller acting for purposes relating to their trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf (a “Trader”)), or a Buyer habitually resides in mainland China (a “Chinese Buyer”), then the Buyer has the right to cancel the online purchase of goods (the “Consumer Cancellation Right”) during the period of 14 calendar days (for EU/UK Buyers) or 7 calendar days (for Chinese Buyers) after the Buyer or their designated agent acquires physical possession of the Property (the “Consumer Cancellation Period”).
(b) If the Buyer exercises the Consumer Cancellation Right, we will notify you and cancel the sale of the Property and the obligation to transfer the Net Sale Proceeds to you in accordance with Condition 12 shall no longer apply. Upon cancellation of a sale, we will credit the Buyer with the Purchase Price, if paid, plus standard delivery charges, if we are required to do so in accordance with the Consumer Cancellation Right), and within 10 days of written notice to you, you shall return to us any Net Sale Proceeds we paid to you for such Property plus all costs (including reasonable attorney’s fees and standard delivery charges, if applicable) we incur in connection with cancelling the sale and enforcing this provision. Upon our receipt of such payment, unless you and we otherwise agree, we will return such Property to you at your expense, subject to Condition 15, unless we are not able to return the Property due to reasons beyond our control.
We may, in our sole discretion, rescind the sale of the Property if we reasonably determine that (a) the Guarantee Line is incorrect or the Property is a “counterfeit” (in each case as defined in the relevant Authenticity Guarantee provided to the Buyer, if applicable), (b) any of your representations or warranties are inaccurate, incomplete or breached, or (c) the sale is illegal or might subject us to liability. In any such case, we will provide you with the basis for our determination (unless we are restricted from doing so on legal or regulatory grounds). Upon rescission of a sale, we will credit the Buyer with the Purchase Price, if paid, and within 10 days of written notice to you, you shall return to us the Net Sale Proceeds we paid to you for such Property plus all costs, including reasonable attorney’s fees, we incur in connection with rescinding the sale and enforcing this provision. Upon our receipt of such payment, we will return such Property to you at your expense, subject to Condition 15, unless we are not able to return the Property due to reasons beyond our control.
15. Retention and Use of Property and Proceeds
(a) We may keep any Property and any other items belonging to you that are under the custody or control of any Sotheby’s Group Company (i) until you have paid all amounts you owe us or any Sotheby’s Group Company; and (ii) for a reasonable period in the event of an unresolved issue whereby the release of the Property might subject us to liability.
(b) If you owe any amount to any Sotheby’s Group Company or have breached or defaulted on any obligation owed to any Sotheby’s Group Company, you authorize us to (i) use the Net Sale Proceeds against any amounts you owe any Sotheby’s Group Company and pay any amount remaining to you; (ii) hold the Net Sale Proceeds pending resolution of any claim of breach or default we have against you; and/or (iii) use or deal with any of your property held by any Sotheby’s Group Company in any way permitted by law (including the Property to which this agreement relates), including by selling it in any way we think appropriate, at a reserve that we determine or without a reserve, notwithstanding Condition 3 above. If we sell such property, we will use the Net Sale Proceeds against any amounts you owe us and pay any remainder to you. If there is a shortfall, you shall pay us any difference between the amount we have received from the sale and the amount you owe us. If not sold, we will release such property to you, subject to Condition 15(a) above, only after we are paid in full for what you owe or any claim against you is resolved.
(c) We may impose and retain for our account a late charge of 1.5% per month, or the maximum amount permitted by law, on any amount you owe to Sotheby’s Group that is unpaid after it is due.
16. Photographs and Illustrations
(a) Subject to any rights of third parties and any exclusions provided by the applicable law, we may use and retain any images, descriptions and other content regarding the Property provided by you.
(b) We own the exclusive copyright to all images and written material we produce relating to the Property. You cannot use them without our prior written permission. We may use them as we deem appropriate, to the extent permitted by law, before or after the sale of Property, and we will be solely liable for any losses or damages arising out of our use of such images and material.
(a) You acknowledge you are solely responsible for paying, and you will pay, all taxes and/or duties due on all amounts due to you under this agreement.
(b) You authorize us to collect any taxes, duties, VAT or any other applicable tax on your behalf, where required by law.
(c) If we are required to pay any taxes, duties, VAT or any other applicable tax on your behalf to a tax authority in any country (including outside the sale location), you authorize us to withhold such amounts from the Net Sale Proceeds. If we have already remitted the Net Sale Proceeds, you shall reimburse us for any such amounts we pay, to the extent permissible by law.
(d) Where we are required by law to report to tax authorities in any jurisdiction any amount related to this sale, you authorize us to make such reporting.
(e) You must provide to us the appropriate information (e.g., information requested on a Form W-9 or equivalent if you are a “U.S. Person,” as defined below, or, where applicable, a Form W-8BEN/BEN-E or equivalent if you are a “non-U.S. Person,” as defined below) required to legally obtain a reduction to or elimination of tax we may otherwise be required to withhold. A “U.S. Person” is a United States citizen or resident, or an entity, including an estate or trust, formed under the laws of the United States. A “non-U.S. Person” is anyone who is not a U.S. Person. If you have previously provided the required information to a Sotheby’s Group Company and it remains valid as of the date of this agreement with respect to payments hereunder, you authorize such company to release the information to us. If, prior to us remitting a payment to you or on your behalf pursuant to this agreement, any such form or information that you previously provided expires or becomes obsolete or inaccurate in any respect, you will promptly notify us and provide us with updated and valid information.
(f) Failure to provide the appropriate information or to update obsolete information will result in us having to delay payment due to you pursuant to this agreement until such information is provided. If this information is not provided within 30 business days of the date the Net Sale Proceeds are due to you or if we are otherwise required to do so by law, we will withhold U.S. tax from the amounts due to you for immediate remittance to the U.S. Internal Revenue Service (the “IRS”).
(g) If you (i) are a U.S. Person or fail to provide the required information as set out in subparagraph (e) above, and (ii) sell more than 200 lots in a single selling location during the 2021 calendar year, or effective as of January 1, 2022, receive more than US$600 (or the equivalent in local currency of the selling location) in proceeds, we must report to the IRS (and possibly to your U.S. state) on Form 1099-K the amount of proceeds paid to you. Some U.S. states, including Massachusetts and Vermont, require reporting regardless of the number of lots sold. In any such case, we will provide you with a copy of the relevant form by the appropriate due date.
(h) You acknowledge that no one within Sotheby’s Group has provided tax advice to you or for your benefit in connection with this agreement.
18. Limitations of Liability
(a) You acknowledge that attribution of the Property is a matter of opinion only and not a statement of fact, and is dependent upon, among other things: information you provide to us, the condition of the Property, the degree of research, examination or testing that is possible or practical in the circumstances, and the status of generally accepted expert opinion, research and scientific or technical analysis at the time of cataloguing. You acknowledge we have no duty to include in any description of the Property a reference to any specific third-party attribution nor to the possibility of other views or potential attribution.
(b) We make no guarantees, representations or warranties to you with respect to the Property, its authenticity, attribution, authorship, origin, date, age, period, culture, source, legal title, condition, value, anticipated selling price or otherwise. To the maximum extent permitted by law, we specifically disclaim the implied warranty of merchantability and fitness for a particular purpose.
(c) We will not be liable for errors or omissions in descriptions of the Property, though if we discover a material error or omission in such descriptions, we will provide a correction, time permitting.
(d) We will not be liable to you for any errors or failure to execute offers placed by prospective buyers or purchases by Buyers through our website, including, without limitation, errors or failures caused by (i) any loss of connection between prospective buyers and our online platform; (ii) a breakdown or problem with our online platform or other technical services; or (iii) a breakdown or problem with a prospective buyer’s internet connection, computer, mobile device or system. Neither we nor the site provider guarantee or represent that the site will operate error-free or that service will be un-interrupted.
(e) Without prejudice to Conditions 18(a)-(d), our liability to you under this agreement will not exceed the amount of the Net Sale Proceeds for the relevant Property, except in the case of our willful misconduct or fraud, or death or personal injury caused by our negligent acts or omissions.
(f) Neither you nor we will be liable for any special, consequential, incidental or punitive damages.
(g) All exclusions or limitations of liability in these Conditions of Business for Sellers apply to the fullest extent permitted by law.
19. Force Majeure
(a) Except with respect to payment obligations, we will not be liable for or be deemed to have defaulted under or breached this agreement for failure or delay in fulfilling or performing any of our obligations to the extent, and for so long as, such failure or delay is caused by events beyond our reasonable control, including without limitation, fire, flood, natural disaster or other act of God, riot, strike or other civil or labor unrest, transportation or other infrastructural incapacitation, inability to secure sufficient labor, power or necessary equipment, act of war, armed conflict, terrorist attack, governmental action or regulation, outbreak of disease, public health emergency, epidemic, nuclear or chemical contamination, or any other cause that we could not have prevented with reasonable care (any of the foregoing, a "Force Majeure Event").
(b) If we are prevented from or delayed in performing any of our obligations by a Force Majeure Event, we shall promptly notify you and recommence performance when and to the extent possible without unreasonable delay. Further, if a Force Majeure Event materially impedes or interferes with our ability to perform our obligations relating to the sale of the Property, we may, unless you object in writing within 14 days of our notice to you, modify our obligations relating to the sale of the Property in various ways, including, without limitation, rescheduling the sale of the Property, and/or modifying or canceling any planned marketing of the Property.
20. Confidentiality and Data Protection
(a) Neither you nor we may disclose the terms of this agreement to any third party without the prior written consent of the other party, except (i) to attorneys, insurers, advisors or financial participants on a need-to-know basis and provided they are subject to confidentiality obligations that are no less restrictive than this provision, or (ii) to comply with valid legal process compelling the disclosure, provided, where permitted to do so by law, the disclosing party first give the other party prompt written notice of such service of process and allow the other party an opportunity to seek a protective order.
(c) Sotheby’s will keep your name confidential and will not use your name in any publicity or promotion of the Property without first obtaining your prior written consent.
21. Law and Jurisdiction
This agreement will be governed by and construed in accordance with the laws of the State of New York. In the event of a dispute arising from or relating to this agreement, you and we agree to submit to the exclusive jurisdiction of the state courts of and the federal courts sitting in the State and County of New York.
(a) You will provide to us, upon our request, verification of identity and any additional information required to comply with our Know Your Client requirements or to evidence your authority to sign this agreement. If you are an agent acting on behalf of a principal, you shall disclose to us the identity of the principal. If you do not satisfy these requirements, we may cancel this agreement.
(b) If there is more than one consignor consigning the Property under this agreement, each consignor jointly and severally assumes the consignor’s obligations and liabilities under this agreement. If you are an agent acting on behalf of a principal, you and your principal jointly and severally assume the consignor’s obligations and liabilities under this agreement.
(c) This agreement is intended to create a true consignment of the Property under common law. You have consigned the Property to us solely to enable us to perform our obligations as your agent, during the period of this consignment, for the sale of the Property. We acknowledge that the Property is yours, and if the Property is in our possession, we hold it solely as bailee.
(d) This agreement, including Parts A, B and these Buy-Now Marketplace Conditions of Business for Sellers, constitutes the entire agreement between us and you with respect to this consignment and supersedes all prior or contemporaneous written, oral or implied understandings, representations or agreements relating to the subject matter of this agreement. If any part of this agreement is deemed invalid or unenforceable, such invalidity or unenforceability will not affect the remaining provisions of this agreement, which will remain in full force and effect. No provision of this agreement may be amended or waived unless you and we agree in writing (including by email) to do so.
(e) In the event of a conflict between the Buy-Now Marketplace Conditions of Business for Buyers and this agreement, the Buy-Now Marketplace Conditions of Business for Buyers will prevail as to matters between you and the Buyer, and the terms of this agreement will prevail as to matters between you and us.
(f) This agreement is binding upon and effective for the benefit of you, your estate, heirs, executors, devisees, representatives, administrators, successors and assigns.
(g) You may not assign your rights or delegate your obligations under this agreement without our prior written consent.
(h) You may not grant a security over the Property or do anything that might result in a lien, claim or encumbrance on the Property from when you execute this agreement until title passes to the Buyer, if sold, or the expiration of the Listing Period.
(i) If we receive a subpoena or court order relating to the Property, the agreement, or to you or your principal, you agree to pay us the costs we incur, including reasonable attorney’s fees, in responding to the subpoena or complying with the court order.
(j) You have had the opportunity to consult an attorney of your choosing before signing this agreement, and you acknowledge we have not provided legal advice to you or for your benefit in connection with this agreement.
(k) The provisions in this agreement that by their nature are intended to survive termination or the completion of the transactions contemplated (including, by way of illustration only, those relating to returning the Property, liability and indemnity, confidentiality, choice of law and dispute resolution) will so survive.
(l) This agreement may be executed in counterparts, each of which will be deemed an original and together constitute one instrument. Signatures sent by facsimile or email transmission or other electronic signatures are valid and binding and will be deemed an original.
LAST UPDATED: APRIL 17, 2023