Conditions of Business for Buyers
Sotheby’s Private Sale Conditions of Business for Buyers
1. Introduction
In these Conditions of Business for Buyers, “we”, “us” and “our” refers to Sotheby’s, Inc. and “you” and “your” refer to the individual, corporation or other entity whose name appears on the invoice for purchased Property. If there is more than one buyer, “you” and “your” refer to all buyers; if the buyer is an agent acting on behalf of a principal, “you” and “your” refer to both principal and agent. Capitalized terms will have the meaning set out in Condition 2.
By your receipt of an invoice for private sale Property, you agree to be bound by these Conditions of Business for Buyers.
We may change these Conditions of Business for Buyers from time to time in our sole by posting such changes on the Sotheby’s website at www.sothebys.com. You will know if these Conditions of Business for Buyers have been revised since your last review by referring to the “Last Modified” date at the bottom of this page.
If you and Sotheby’s execute a Private Purchase Agreement for the Property, in the event of conflict between the terms of these Conditions of Business for Buyers and the Private Purchase Agreement, the terms of the Private Purchase Agreement shall control but only to the extent of such conflict.
2. Defined Terms
Authenticity Guarantee: the guarantee we provide as principal to you in relation to purchased Property, as set out in Condition 5.
Property: an item of property purchased by you and listed on the invoice. Where more than one item of property is purchased, references to “Property” in these Conditions of Business for Buyers will mean with respect to each item of Property.
Purchase Price: the price for the Property that is paid by you.
Seller: the person(s) or entity(ies) on whose behalf we are selling an item of Property. Where a Sotheby’s Group Company owns Property, Sotheby’s acts in a principal capacity as Seller.
Sotheby’s, Inc.: the company incorporated in New York, with its headquarters at 1334 York Street, New York, NY 10021, USA.
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.”
3. Buyer Representations and Warranties
(a) You represent and warrant to us and the Seller that at all relevant times:
(i) your performance under these Conditions of Business for Buyers has not and will not violate any applicable law, regulation or code;
(ii) your purchase of the Property, and if you are acting as an agent on behalf of a principal, the arrangement between you and your principal, will not facilitate tax crimes;
(iii) you have no knowledge or reason to suspect that (1) the funds used to purchase the Property are connected with the proceeds of criminal activity, or (2) you or your principal, if applicable (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 or economic sanctions crime, terrorist activity, tax evasion or act in violation of any applicable anti-bribery or anti-corruption laws or regulations;
(iv) you (and your principal, if applicable) are not, nor are you (or your principal, if applicable) owned (in whole or in part), controlled, or acting on behalf of, an entity or individual that is: (1) the subject of economic sanctions, embargoes or other trade restrictions in any jurisdiction, including those administered and enforced by the United States, European Union, United Kingdom, United Nations Security Council, or other applicable sanctions authority (collectively, “Sanctions”), or (2) located, organized, or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Syria, Russian Federation and Belarus) (collectively, “Sanctioned Jurisdictions”);
(v) you (and your principal, if applicable) are currently in compliance, and for the past five years have complied, with applicable Sanctions, anti-money laundering, anti-terrorism, and anti-bribery or anti-corruption laws;
(vi) the Purchase Price will not be funded directly or indirectly by or from anyone that is the subject of Sanctions or located, organized or resident in a Sanctioned Jurisdiction;
(vii) no party directly or indirectly involved in the transaction is the subject of Sanctions or is owned (in whole or in part) or controlled by any individual or entity that is the subject of Sanctions or otherwise located, organized, or resident in a Sanctioned Jurisdiction, except as expressly authorized in writing by the government authority having jurisdiction over the purchase and with our prior express written consent;
(viii) if you are acting as agent on behalf of a principal, you have taken steps reasonably designed to ensure compliance with Sanctions, anti-money laundering, anti-terrorism, and anti-bribery or anti-corruption laws, including but not limited to, conducting appropriate due diligence on your principal and screening source of funds. You will retain and make available upon request the documentation evidencing such due diligence for at least five years after the purchase, and all commissions payable to you for this purchase have been authorized by your principal;
(ix) your purchase will not cause (or otherwise result in) us, Seller, or anyone else to violate any Sanctions, anti-money laundering, anti-terrorism, or anti-bribery or anti-corruption laws; and
(x) you have full legal authority without any further action or other party’s consent to enter into and perform under these Conditions of Business for Buyers and to give 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 incorporated or formed, validly existing and in good standing in the jurisdiction where it is incorporated or formed.
(b) We may, in our sole discretion, rescind the sale of the Property if we reasonably determine that (i) any of the Seller’s representations or warranties is inaccurate, incomplete or breached; or (ii) the sale has subjected or might subject us or the Seller to liability.
3. Indemnity
You shall indemnify and hold us, each Sotheby’s Group Company, our and their respective officers and employees, and the Seller 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, incompleteness or breach of any of your representations or warranties or breach of your obligations under these Conditions of Business for Buyers to the fullest extent permitted by law.
4. Disclaimer of Warranties
The Property is offered for sale “AS IS,” without any guarantee, representations or warranties by us or the Seller, except for the express representations and warranties given by the Seller and the Authenticity Guarantee, which we, as principal, provide to you. We and the Seller disclaim all implied warranties, including but not limited to merchantability and fitness for a particular purpose, except in so far as such obligations cannot be excluded by law. Neither we nor the Seller give you any guarantee, representation or warranty as to condition, completeness, size, quality, rarity, value, importance, medium, frame, provenance, exhibition history, or literary or historical relevance of the Property, and no statement anywhere, whether oral or written, will be deemed such a warranty, representation or assumption of liability. Except as expressly set forth elsewhere in these Conditions of Business for Buyers, neither we nor the Seller make any representations or warranties regarding whether the Property is subject to copyright or whether you acquire any copyrights, including but not limited to, any reproduction right in the Property.
5. Authenticity Guarantee
(a) We, as principal, provide an Authenticity Guarantee to you, subject to the following terms and conditions, that the Property is not a “counterfeit”. For these purposes, a “counterfeit” means Property that in Sotheby’s reasonable opinion is an imitation created to deceive as to authorship, origin, date, age, period, culture or source, where the correct description of such matters is not reflected by the Property’s description in the invoice. No Property shall be considered a counterfeit by reason only of any damage and/or restoration and/or modification work of any kind (including repainting or over-painting).
(b) The Authenticity Guarantee is provided for a period of five years after the date the Property is sold to you (the “Guarantee Period”), except as otherwise provided in Condition 5(c) below.
(c) With respect to Property containing any gemstone, jade or pearls, the Authenticity Guarantee is that the gemstone, jade or pearls are genuine or of natural origin, and the Guarantee Period for any claim that the gemstone, jade or pearls are not genuine or of natural origin is 21 days from the date the Property is sold to you.
(d) The Authenticity Guarantee is provided solely for your benefit and cannot be transferred to any third party.
(e) To claim under the Authenticity Guarantee, you must:
(i) notify us in writing within three months of receiving any information that causes you to question the authenticity or attribution of the Property and in any event by no later than the expiry of the Guarantee Period, and providing all the information in your possession in support of your claim; and
(ii) return the Property to us or, at our direction, to the Seller or another third party, in the same condition as at the date of sale to you and be able to transfer good title in the Property, free from any third-party interest or claim(s) arising after the date of sale.
(f) We reserve, in our absolute discretion as principal, the right to reject a claim under the Authenticity Guarantee if:
(i) the description of the Property in the invoice was in accordance with the opinions of scholars and experts, which are generally accepted and known or privately expressed to us, as at the date of the sale, or the Property description indicated there was a conflict of such opinions;
(ii) the only method of establishing that the Property was a counterfeit at the date of the sale would have been by means or processes not then generally available or accepted, unreasonably expensive or impractical to use, or likely to have caused damage or loss of value to the Property;
(iii) the manner in which the Property is said to be a counterfeit is due only to damage, restoration, modification work of any kind (including repainting or over-painting) present at the time of the sale, or the inability of the manufacturer, maker or relevant archives to confirm the authenticity and attribution of the Property; or
(iv) the manner in which the description of the Property is incorrect does not result in a material loss of value in the Property.
(g) Subject to the above, if we reasonably determine that the Property is a counterfeit, we will ensure that the sale is rescinded, and that you are refunded the Purchase Price in the currency of the sale.
(h) The rescission of the sale and the refund of the Purchase Price is your sole remedy available under the Authenticity Guarantee and is in lieu of any other remedy that might otherwise be available to you as a matter of law or in equity.
6. Limitation of Liability
(a) Neither you nor we nor the Seller will be liable for any special, consequential, indirect, incidental or punitive damages.
(b) Without prejudice to Condition 4, our and the Seller’s aggregate liability to you under these Conditions of Business for Buyers for any claim relating to Property will not exceed the amount of the Purchase Price for the relevant Property actually paid, except in the case of our willful misconduct or fraud, or in the case of death or personal injury caused by our negligent acts or omissions.
7. Taxes
(a) You must pay any applicable sales tax, compensating use tax, VAT, consumption tax, goods or services tax or other indirect taxes, luxury tax, excise tax, and duties or tariffs (collectively, “Taxes”), as well as any applicable artist resale right royalty on the purchase of Property where and as required by law. We will collect any applicable Taxes and artist resale right royalty on the purchase of Property where and as required by applicable law.
(b) You acknowledge that no one within Sotheby’s Group has provided tax advice to you or for your benefit in connection with this agreement.
8. Consequences of Late- or Non-Payment
(a) You are required to pay the full Purchase Price, plus any applicable Taxes, in cleared funds within the timeframe set forth on the invoice. If you fail to do so without our prior agreement, you will be in default. In such case, without prejudice to any rights or remedies the Seller may have, we may in our sole discretion exercise one or more of the following rights or remedies in respect of each item of Property for which you have failed to pay in full, to the fullest extent permitted by law, in addition to any and all other rights or remedies available to us or the Seller by law or in equity:
(i) store the Property at our premises or elsewhere at your sole risk and expense;
(ii) cancel the sale of the Property;
(iii) set off any amounts owed to you by a Sotheby’s Group Company against any amounts outstanding from you in respect of the Property;
(iv) charge interest at the annual percentage rate of 6% above the prime rate, but in no event greater than the maximum rate permitted by law, from the date on which payment is due to the date the Purchase Price, plus any applicable Taxes, are received in cleared funds (both before and after judgment);
(v) retain or exercise a lien over any of your property that is in the possession of a Sotheby’s Group Company, in which case we will inform you, and we may thereafter arrange the sale of such property and apply the proceeds to the amount outstanding;
(vi) resell the Property at your expense either at auction or by private sale, with estimates and reserves set at our discretion, and in the event such resale is for less than the Purchase Price, you will remain liable for the shortfall together with all costs incurred in such resale;
(vii) commence legal proceedings to recover the Purchase Price for the Property, or to claim damages for your breach of contract, together with interest and the costs of such proceedings on a full indemnity basis; and
(viii) release your name and address to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs, and in such case, we will take reasonable steps to notify you prior to releasing such details to the Seller.
(b) In the event you fail to pay any or all of the Purchase Price and we elect to pay the Seller any portion or all of the sale proceeds, you acknowledge that we will have all of the rights that the Seller would otherwise have against you for any such amount, whether at law, in equity, or under these Conditions of Business for Buyers.
(c) If you default on your purchase, you will be deemed to have granted and assigned to us and each other Sotheby’s Group Company a continuing security interest of first priority in any property or money of or owing to you in the possession, custody or control of us or any other Sotheby’s Group Company, in each case whether at the time of the applicable sale, the default or if acquired at any time thereafter, and we and each other Sotheby’s Group Company may retain and apply such property or money as collateral security for the obligations due to us or to any other Sotheby’s Group Company. We and each other Sotheby’s Group Company will have all of the rights accorded a secured party under the New York Uniform Commercial Code. In such case, you hereby agree that we and each other Sotheby’s Group Company may file financing statements under the New York Uniform Commercial Code without your signature.
9. Collection and Delivery of Purchases
(a) You are obliged to arrange collection of the Property no later than 30 calendar days after the date of sale, unless otherwise agreed with us in writing.
(b) All packing and handling are at your risk. We will not be liable for any acts or omissions of third-party packers or shippers.
(c) If you request Sotheby’s to assist with shipping the Property to you, we will include a shipping quote outlining your shipping costs (the “Buyer’s Shipping Quote”). If you are located outside of the U.S., the Buyer’s Shipping Quote will be exclusive of any taxes or duties, and it is your responsibility to ascertain and pay all international duties, custom charges, taxes, charges and tariffs owed to the appropriate government entity or that otherwise need to be paid prior to shipment and/or delivery including any third-party charges necessary to facilitate shipment. Once you have accepted the Buyer’s Shipping Quote, we have received in full the Purchase Price, and you have paid in full the amount stated in the Buyer’s Shipping Quote by the payment deadline, we will arrange shipment of the Property to you to the address you provided on your account following conclusion of the sale.
(d) If you pay the Purchase Price but fail to collect the Property within 30 calendar days of the sale, we will store the Property at your expense and risk at our premises or with a third party.
(e) If the Property is not collected within six months of the sale, you authorize us, having given notice to you, to arrange a resale of the Property by auction or private sale, with estimates and reserves at our discretion. If the Property sells, we will be entitled to deduct from the sale proceeds our standard seller’s commission and any other costs we incur in selling the Property, and any excess will be remitted to you.
10. Risk and Responsibility for the Property
(a) Risk and responsibility for the Property will transfer to you on the earlier of: (i) collection of the Property, or (ii) on the 31st calendar day after the sale. For any Property stored at a third-party location and not available for collection from our premises, your provision to us of instructions authorizing the release to you or your agent shall constitute collection by you.
(b) Once risk passes to you, you irrevocably release us and each other Sotheby’s Group Company, our and their respective officers and employees, agents, warehouses and the Seller, from any and all claims, causes of action, liabilities, damages, losses, and expenses (including but not limited to reasonable attorneys’ fees) for loss of or damage to the Property.
(c) Before risk and responsibility for the Property transfers to you in accordance with this Condition 10, we assume liability for loss or damage to the Property, subject to the exclusions set out in paragraph (d) below. In the event of loss or damage for which we have assumed liability, we will determine the extent of depreciation to the Property, if any, caused by the loss or damage and compensate you in respect of that loss up to the amount of the Purchase Price paid by you for the Property.
(d) We will not be liable for any loss or damage (i) caused by 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.
(e) Upon your receipt of payment from us for any loss or damage to the Property in accordance with this Condition 10, you, on your own behalf and on behalf of your insurer(s), irrevocably release us and each other Sotheby’s Group Company, our and their respective officers and employees, agents, warehouses and the Seller from all liability for loss of or damage to the Property and irrevocably waive all rights and claims that you might have against us or any other Sotheby’s Group Company, our or their respective officers or employees, agents, warehouses or the Seller in connection with the same.
11. Data Protection
We will hold and process your personal information and may share it with another Sotheby’s Group Company for use as described in, and in line with, our Privacy Policy published on our website at https://www.sothebys.com/en/privacy-policy or available on request by email to enquiries@sothebys.com.
12. Miscellaneous
(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 (including but not limited to if you are acting as agent on behalf of a principal, you will disclose to us the identity of your principal) or applicable law or to evidence your authority to enter into these Conditions of Business for Buyers. We reserve the right to seek identification of the source of funds received. If we have not completed our enquiries in respect of Know Your Client, Sanctions, anti-money laundering, anti-terrorist financing or other checks as we consider appropriate concerning you (or your principal, if applicable) to our satisfaction or if we are not satisfied in our sole discretion with the results of such enquiries, we may, in our sole discretion, cancel or rescind the sale of the Property, including refusing or returning any payment, as appropriate, and take any further action required or permitted under applicable law without any liability to you.
(b) Our obligations under these Conditions of Business for Buyers are subject to the completion of our condition check of the Property and due diligence to our satisfaction, as determined by us in our sole discretion.
(c) These Conditions of Business for Buyers will automatically terminate and the invoice for the Property will be null and void if we have not entered into a written agreement with the Seller that will allow us to undertake our obligations in these Conditions of Business for Buyers.
(d) These Conditions of Business for Buyers and the invoice constitute the entire agreement between us and you with respect to this purchase 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.
(e) These Conditions of Business for Buyers are binding upon you, your estate, heirs, executors, devisees, representatives, administrators, successors and permitted assigns.
(f) You may not assign your rights or delegate your obligations under these Conditions of Business for Buyers without our prior written consent.
(g) If we receive a subpoena or an order from a court, body or authority of competent jurisdiction 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 relevant order.
(i) To the extent otherwise applicable, the Vienna Convention on the International Sale of Goods is excluded.
(j) The provisions in these Conditions of Business for Buyers that by their nature are intended to survive termination or the completion of the transactions contemplated (including, by way of illustration only, liability and indemnity, confidentiality, choice of law and dispute resolution) will so survive.
13. 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, though we will retain the right to bring proceedings in a court other than the state and federal courts sitting in the State and County of New York.
Last Modified June 22, 2023