These terms and conditions of sale (the “Terms and Conditions”) apply to sales by HBA, a sole partner, simplified joint stock company, registered with the Paris Trades and Company register under the No. 494 262 686, with head offices located at 71, rue du Faubourg Saint-Honoré, 75008 Paris, France (hereafter “HBA” or “the Seller”), whether the sales take place on their premises, at a distance or off-premises.
The term “Buyer” refers to all natural or legal persons, acting in a professional or non-professional capacity, on their own behalf or for a third party, acquiring one or more works of art (hereafter “Work”) by any artist (hereafter “Artist”). The Buyer and the Seller are referred to collectively as “the Parties” or individually as “the Party”.
These Terms and Conditions, the Invoice to which they are annexed and all additional invoices to the said Invoice, taken together, constitute the contractual instrument of the sale concluded between the Parties (hereafter “the Sale”), it being specified that in the event of a contradiction between these Terms and Conditions and the information on the Invoice, the latter will systematically prevail.
The Buyer and the Seller agree to be bound by the Terms and Conditions.
The Buyer must read and understand these Terms and Conditions before going ahead with the transaction. If the Buyer does not understand or refuses a clause, they must inform the Seller as soon as possible and discuss the matter with them. By expressing their consent to the Sale in any way, in particular by signing the Invoice or by fulfilling their obligations regarding the Sale, the Buyer is deemed to have read, understood and accepted the Terms and Conditions.
However, if the Parties sign a specific contract of sale setting out the conditions for the acquisition of the Work by the Buyer, the specific contract will prevail over these Terms and Conditions.
1. SALE OF A WORK OF ART
The Seller agrees to sell the Work to the Buyer and the Buyer agrees to buy the Work from the Seller, subject to full compliance with each of the clauses set out in these Terms and Conditions.
Any sale of a Work will be preceded by the sending of a pro forma invoice (hereafter “the Invoice”). A sale will only become definitive once payment in full has been received for the Work.
2. THE STATE OF THE WORK
The Work is sold in the state in which it is at the time of the Sale, with any faults or flaws.
As such, it is up to the Buyer to examine the Work prior to the Sale and to ask the Seller about its characteristics and any restoration work.
Remounting, lining, mounting, cradling and any similar interventions are conservation interventions which can in no way be deemed as defects likely to affect the Work. No claims may be brought concerning customary restoration and minor accidents.
3. THE SELLER’S GUARANTEES AND DECLARATIONS
The Seller guarantees that:
- they comply with all laws and regulations applicable to their business;
- they have the ability and the authority to proceed with said Sale;
- they are the owner of the Work or are authorised to sell it on behalf of the owner.
The Seller undertakes to make every possible effort to provide the Buyer with accurate, correct and complete information. They undertake to inform the Buyer speedily in the event of any change regarding this.
The Seller does not provide any guarantee of any kind whatsoever, express or implied, relating to the Work. Any express or implied declarations by the Seller as to its authenticity, attribution, description, date, provenance, title or condition are merely the judgement and opinion of the latter, based on the information they possess, and are not guaranteed by them.
The Seller rejects any liability in the event experts change their opinion of the Work after the Sale.
4. THE BUYER’S GUARANTEES AND DECLARATIONS
The Buyer will provide the Seller, purely for the latter’s administrative and regulatory needs, all necessary documents, certificates and information, starting with those relating to the Buyer’s identity and contact details.
They declare and guarantee that:
- the said documents, certificates and information are true, accurate and correct at the time they are provided;
- they will inform the Vendor straight away of any error in or change to the aforementioned documents, certificates and information;
- they are in compliance with all current laws and regulations applicable to them, in particular of a fiscal nature;
- in compliance with legislation relating to the fight against money laundering and the financing of terrorism, they are not commonly known by a name other than the one appearing on the Invoice or, if they are, that they have fully communicated, in writing, this or these name (s) to the Seller;
- they have the ability and authority to conclude and complete the Sale under the laws of their country of origin;
- their marriage contract permits them to voluntarily and legitimately buy the Work;
- they are acting and buying the Work in their own name or on their own behalf or, if applicable, jointly with any co-buyer whose name appears on the Invoice.
5. THE PRICE OF THE WORK OF ART
The Price is the sum mentioned on the Invoice or, failing that, in any communications between the Parties indicating their agreement over the sum.
Unless otherwise stated on said Invoice:
- the Price is inclusive, covering the cost of the purchase and all other named costs;
- The Price includes all taxes;
- the purchase price of the Work is subject to VAT on the profit margin in accordance with Article 297A of the General Tax Code;
- any potential named ancillary costs are subject to common law VAT;
- the Price does not cover any ancillary costs that are not expressly named and, in particular, packaging and delivery costs unless named.
Payment must be made in the currency specified on the Invoice, unless the Seller has provided written agreement to the contrary.
For sales involving payments in foreign currencies, taken into consideration in the Invoice will be the euro exchange rate of the European Central Bank plus 5% (in order to allow for market practices and exchange fees).
Exchange risks are not incumbent upon the Seller; should rates rise between the date the Invoice is issued and the date payment is made by the Buyer, the Buyer will need to meet the additional cost resulting from said rise.
6. TAXATION
The Buyer is responsible for paying all taxes arising from their purchase and the subsequent delivery of the Work.
All payments must therefore be free from all deductions or compensations, in particular in respect of any tax, levy, importation fee, duty, royalty and charges whatsoever, currently or subsequently imposed by any governmental, tax or other authority, unless otherwise provided by the law.
Consequently, if the Buyer is required to make such a deduction, they will also pay the Seller the additional sums necessary to ensure that, in the end, the Seller will receive the total amount excluding deduction.
7. PAYMENT
Should the Seller permit a delay in payment, any partial payment made by the Buyer will be considered a down payment.
Unless a specific delay is stipulated in the Invoice, the Buyer will pay the Seller:
- the Price within 15 (fifteen) days from receipt of the Invoice;
- the balance of the Price within 15 (fifteen) days of payment of the last deposit.
All payments must be made:
- by bank card;
- by bank transfer to the bank account named on the Invoice or any other bank account designated in a timely way by the Seller;
- in cash for payments:
- up to a sum of €1,000 including taxes if the Buyer’s tax residence is in France;
- up to a sum of €15,000 including taxes, if the Buyer’s tax residence is abroad and they are not acting in a business capacity.
The payment is considered complete on the date the funds are definitively available to the Seller.
In accordance with Article L. 441-10 of the Commercial Code, in the event of late payment:
- the rate of late payment interest applicable from the day after payment was due is equal to:
- interest rates applied by the European Central Bank in its most recent refinancing operation, increased by 10 percentage points;
- or three times the legal interest rate if this amount is higher than the above;
- and if the Buyer is a professional, they are also liable for:
- a minimum flat-rate compensation fee for recovery costs of €40 (forty euros) excluding tax;
- additional compensation if the actual recovery costs exceed the above flat rate and if the Seller provides proof of this.
Interest accrues daily, calculated on the basis of a 365-day year, and is due without prejudice to the Seller's other rights and remedies against the Buyer.
In addition to any late payment interest, the Buyer shall pay the Seller all costs arising from the late payment, including, non-exhaustively, costs related to the insurance, storage and administration of the Work
8. CANCELLATION OF THE SALE
Should the Buyer in any way fail to meet the above conditions of payment, the Sale may lawfully be cancelled without advance notice and the fault shall be with the Buyer. The Seller will notify the Buyer of said cancellation by way of a recorded delivery letter to be signed for on receipt.
Furthermore, the Sale may be cancelled should the Buyer in any other way fail to comply with the clauses in these Terms and Conditions if:
- after receipt of a formal notice, sent by the Seller by recorded delivery letter to be signed for on receipt, to comply with the disputed obligation;
- the Buyer does not comply fully within the following 15 days.
In accordance with the provisions of Article 1590 of the Civil Code:
- in the event the Sale is cancelled due to a fault on the part of the Buyer, the Seller will retain any benefits accrued from any down payments already received;
- in the event the Sale is cancelled due to a fault on the part of the Seller, excluding force majeure, the Seller will refund twice the sum of any down payments already received.
9. RETENTION OF OWNERSHIP
In accordance with Article 2367 of the Civil Code, ownership of the Work will only be transferred to the Buyer once the Seller has received payment in full.
10. DELIVERY OF THE WORK OF ART - TRANSPORT
10.1 DELIVERY OPTIONS
The Work is delivered by the Seller to the Buyer:
- either handed over directly to the latter;
- or by notice of availability on the Seller’s premises, with the stipulation the Work is made available to the Buyer for a period of 15 (fifteen) days following reception of payment in full of the Price;
- or by delivery of the Work by a carrier chosen by the Buyer or Seller to an address supplied by the Buyer.
Unless otherwise specified in the Invoice, the Buyer will bear all costs and expenses of third parties relating to, among other things, packaging, transport, installation, shipping, customs duties, taxes, royalties and insurance of the Work for delivery to the Buyer in accordance with these Terms and Conditions.
The length of time it will take to transport the Work will be confirmed by the Seller on the day the Price is paid in full and will start from that date.
The Buyer acknowledges that the delivery date does not constitute an essential condition of this contract or, should that not be the case, they will inform the Seller of this fact as soon as the Sale is concluded. In the absence of any such information, this date will not constitute an essential condition of the contract.
In the event of a delay to delivery:
- no claims may be brought by the Buyer;
- aside from the hypothesis in which the delivery date constitutes an essential condition, the Buyer must give the Seller formal notice to comply by recorded delivery letter, to be signed for on receipt, in accordance with Article L. 216-6 of the Consumer Code.
If delivery is not effected within 1 (one) month of reception of this letter, the Buyer is at liberty to notify the Seller, by way of a recorded delivery letter, to be signed for on receipt, that they are cancelling the Sale.
If the Buyer receives the Work before the Seller receives this notification, the Sale will not be cancelled.
In the event of the cancellation of the Sale under the aforementioned conditions, the Seller will refund the full Price in accordance with Article L. 216-7 of the Consumer Code.
If the Buyer receives the Work after the cancellation of the Sale, they will return it within 8 (eight) days. In this case, the Price paid will only be refunded once the Seller takes possession of the Work once more.
10.2 TRANSFER OF RISKS
The risks of loss of or damage to the Work are transferred to the Buyer on the earliest of the dates listed hereafter:
- when the Work is handed over directly in the gallery;
- when the Work is handed over by the Seller to the chosen carrier.
- at the end of a period of 30 days after the Buyer has been given the Invoice. In the event the Work is transported by a third party chosen by the Seller, this carrier stands guarantee for loss and/or damage, in accordance with the provisions in Article L. 133-1 of the Commercial Code. In this case, it is up to the Buyer not to sign for or take delivery of the Work before verifying its state. In the event of damage other than that resulting from a defect specific to the Work or resulting from a case of force majeure, the Buyer must refuse delivery and immediately inform the Seller in order to allow the latter to bring action against their carrier.
11. EXPORTATION OF CULTURAL ASSETS
Exporting goods out of France or importing them into another country is sometimes subject to obtaining one or more permits from administrations.
Unless they have been obtained by the Seller prior to the Sale, the Seller may assist the Buyer, if so requested, with a view to obtaining the necessary administrative permit(s), without however being responsible for any refusal or delay.
12. INTELLECTUAL PROPERTY RIGHTS
Only physical ownership of the Work is transferred to the Buyer, subject to payment in full of the Price.
The Sale in no way enjoins the ceding of any intellectual property rights whatsoever.
The Seller provides no guarantees relating to any intellectual property rights that may be attached to the Work.
13. LIMITATION OF LIABILITY
Under any and all circumstances, the Seller's liability towards the Buyer for any claim related in any way whatsoever to the Sale, for any reason (including but not limited to any negligence, errors, omissions, faults or breaches on the part of the Seller) is limited to the amount of the Price.
14. RIGHT OF WITHDRAWAL
The Buyer is informed that:
- if they qualify as a “Consumer” as defined in Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (hereafter the “Directive”);
- and if the Sale is concluded by a “distance contract” or an “off-premises contract” as defined in this same Directive or any other applicable local legislation;
- they have a period of 14 (fourteen) days, starting from the day they, or a third party designated by them (other than the carrier), acquires physical possession of the Work, to withdraw from the Sale without having to provide a reason for their decision;
- in the case of a multiple order, the withdrawal period begins from the day the Buyer (or the designated third party) acquires physical possession of the last work in question.
To exercise their right to withdrawal, the Buyer “Consumer” must inform the Seller before the withdrawal period expires of their decision to withdraw from the Sale by sending to the address helene@helenebailly.com either:
- the withdrawal form, a draft of which is attached to these general conditions, duly completed;
- a declaration expressing their intention to exercise their right of withdrawal.
This declaration must include an identification of the Work. The Buyer “Consumer” must return the Work to the Seller, or anyone designated by the latter, as soon as possible, and no later than 14 (fourteen) days after sending their decision to withdraw.
On reception of the Work by the Seller, the Seller will refund all payments received, deducting any direct costs incurred in the returning of the Work, the Buyer being liable for these costs. In the event of a multiple order, the Seller will only reimburse the Price corresponding to the work or works withdrawn as long as the Buyer has paid for them.
The Buyer “Consumer” will be liable for any depreciation in the value of the Work resulting from their handling of that Work.
15. NON-WAIVER
The fact that a Party does not invoke or exercise the rights or remedies conferred on them by these Terms and Conditions does not constitute a waiver of said rights or remedies.
16. FORCE MAJEURE
Notwithstanding the previous clause, no Party shall be held liable for any non-implementation or any delay in the implementation of a clause if this is the result of a force majeure as defined in Article 1218 of the Civil Code (“force majeure”).
In such circumstances, implementation of the clause in question is simply suspended for the duration of the force majeure.
Unless agreed otherwise by the Parties, if this suspension exceeds a period of 15 (fifteen) days, the Party negatively affected by the non-implementation of the clause is within their rights to cancel the Sale without the other Party being able to demand compensation or interest.
17. EPIDEMICS AND PANDEMICS
Unless otherwise agreed by the Parties, in the event of difficulty of any kind resulting from an epidemic or pandemic and, in particular, the Covid-19 pandemic, as well as any measures taken as a result, the additional costs associated with the delivery of the Work will be borne by the Buyer and will be re-invoiced to them.
18. MISCELLANEOUS CLAUSES
References to any document or agreement must be interpreted as references to the document or agreement in effect at the time of the Sale and as amended, modified or completed by common accord between the Parties.
The invalidity or inapplicability of any one of the clauses of these Terms and Conditions does not affect the validity of the others.
19. DATA PROTECTION
The Seller processes data personal to the Buyer for the following purposes:
- to meet their legal and regulatory obligations, particularly regarding invoicing and the fight against money-laundering;
- to correctly carry out these Terms and Conditions (payment guarantee, taxation and delivery etc.);
- to add the Buyer’s details to their client records;
- and to send the Buyer newsletters about their activities and/or invitations to events organised by the Seller based on the Buyer having a legitimate interest in receiving such correspondence/invitations.
In accordance with current law, the Buyer has the right to access, correct, transfer and erase this data, or to limit what use can be made of it. If they have bona fide grounds for doing so, the Buyer may also object to their data being processed.
As long as the Buyer can provide valid proof of identity, they may exercise this right by contacting the Seller:
- by email to the following address: helene@helenebailly.com;
- by letter to the address on the header of this document.
The Seller’s Data Protection Charter can be found at the following address: https://www.helenebailly.com/galerie/politique-de-confidentialite/.
20. AMICABLE SETTLEMENT OF DISPUTES
The Parties agree that, in the event of a dispute, they will prioritise a search for an amicable resolution.
Thus, should the Buyer which to make a claim, they will first contact the Seller’s customer services:
- by phone: + 33 (0)144 515 151 (standard rate number from a landline in mainland France), from Monday to Saturday except public holidays or non-working days. From 10 am to 7 pm;
- by email to helene@helenebailly.com;
- or by post to the address on the header of this document.
The Seller pledges to provide an initial response within no more than 2 (two) months.
In the absence of amicable discussions or in the event of the failure thereof, in accordance with Articles L. 612-1 et seq. of the Consumer Code, the Buyer having the status of Consumer as defined in Directive 2011/83/EU may then bring their dispute before the mediation service below:
Paris Mediation and Arbitration Centre (CMAP)
Service Médiation de la consommation
39 avenue Franklin D. Roosevelt
75008 PARIS, FRANCE
@: consommation@cmap.fr
www.médiateur-conso.cmap.fr
The Parties remain free to agree to or refuse mediation and, should they agree to it, to accept or reject the solution suggested by the mediator.
If the above amicable efforts fail, each of the Parties may refer any dispute to the competent court.
21. COSTS
The Parties agree in advance that, in the event of judicial or arbitral litigation relating to the execution of the Sale, in addition to the sentences pronounced in their favour, the Victorious Party will be entitled to claim the reimbursement of any costs and expenses incurred by said litigation (including all legal fees, expert witness fees, litigation costs and arbitration, court or other costs) that have not already been covered.
“Victorious” is understood to mean the Party in whose favour the arbitration or legal proceedings rule on the central issue raised within the dispute.
22. APPLICABLE LAW AND JURISDICTION
The Parties agree that the Sale and these Terms and Conditions are governed by French law.
They also assign powers to the courts of Paris for any claim or dispute relating to the validity, execution or interpretation of the said Sale and/or any additional service provided within the framework of this Sale.
Appendix 1: Withdrawal Form
(Please complete and return this form only if you wish to withdraw from the Sale)
To the attention of HBA (Hélène Bailly Gallery), a simplified joint stock company with a single shareholder, registered in the Paris Trade and Companies Register under number 494 262 686, with its registered office at 71, rue du Faubourg Saint-Honoré 75 008 Paris,
I/We hereby notify you of my/our withdrawal from the contract for the sale of the following goods:
Ordered on / Received on :
Name of consumer(s) :
Address of the consumer(s) :
Signature of consumer(s) (only if this form is notified on paper) :
Date :