Bidding and Buyer Agreement
This Bidding and Buyer Agreement (this “Agreement”), effective as of the date that you click “I accept” or otherwise indicate your acknowledgment of this Agreement, is entered into between you, as a Buyer of art or other goods on or through the Service (defined below) and/or as a user of the Service for other purposes (“Buyer,” “you,” or “your,” as applicable), and Emerging Art Auctions LLC (doing business as Greenhouse Auctions, and referred to herein as “Greenhouse Auctions,” the “Company,” “we,” “us,” or “our,” as applicable).
This Agreement applies to all Auction Listings on the Service for which you submit a bid and/or other offer (collectively, a “Bid”) to purchase art or other goods (each, a “Lot”). From time to time, in connection with your submission of a Bid, you may be required to agree to a separate or updated Buyer Agreement. Any User (including, without limitation, you) that submits a bid and/or other offer to purchase a Lot is referred to herein as a “Bidder.”
THE AUCTION BIDDING PERIOD
- We may, but shall not be required to, permit Bids to be submitted for a particular Lot during an Advance Auction Bidding Period, during which time, Bidders may submit a Bid that represents the maximum Hammer Price such Bidder is willing to pay for a Lot. This Absentee Bid will then automatically be applied during the Live Auction Bidding Period to bid on such Bidder’s behalf at the next minimum bid increment during the Live Auction Bidding Period, up to the maximum amount of the Absentee Bid.
- The Reserve is the minimum bid required from a Bidder to initiate a sale of the applicable Lot from a Seller to a Bidder at the end of the applicable Auction Bidding Period.
- Without limiting the Buyer Representations and Warranties stated below, you hereby represent and warrant that all information you or any agent on your behalf provide in connection with Lot and a Bid is true, correct, and complete to the best of your knowledge, and we take no liability for such information.
- The winner of a particular Auction Listing (the “Winning Buyer”) shall be the Bidder that places the highest bid that meets or exceeds the Reserve for such Auction Listing during the Auction Bidding Period; provided, however, that, in the event multiple Bidders submit the same high Bid, the earlier Bid (based on the date time stamp of bid submission) will be deemed the highest Bid (the “Winning Bid“), and such Bidder that placed the earlier Bid shall be the Winning Buyer. For the avoidance of doubt, if a Bid placed during a Live Auction Bidding Period is equal to an Absentee Bid placed during the applicable Advance Auction Bidding Period, the Winning Bid shall be the earlier submitted Absentee Bid, and the Bidder that submitted such Absentee Bid shall be the Winning Buyer.
- During the Auction Bidding Period, we will not provide you with any information regarding other Bidders’ Bids, and if you submit the Winning Bid for a particular Lot we will so inform you on or immediately after the conclusion of the Auction Bidding Period.
- In no event shall a Buyer and Seller conspire to use the Service to facilitate the purchase of a Lot outside the Auction Bidding Period or otherwise at the exclusion of Greenhouse Auctions and/or for the purpose of avoiding the payment of any compensation or fees that would otherwise be due to Greenhouse Auctions.
- On or promptly following the conclusion of an Auction Bidding Period in which you are the Winning Buyer, we shall provide your contact information to the applicable Seller, and we shall provide such Seller’s contact information to you. You agree to act in good faith to arrange for shipping or to pick up the Lot as soon as practicable following the conclusion of the Auction Bidding Period and your payment of the Purchase Price (as defined in the Pricing and Payment Terms). You must pay the full Purchase Price (which includes, for the avoidance of doubt, the Hammer Price, the Buyer Premium, and Sales Tax) prior to the Seller being required to ship the Lot to you or otherwise make it available to you for pickup.
- Greenhouse Auctions shall arrange for the exchange of funds related to your purchase of the applicable Lot from the Seller; however, if you and the Seller opt to arrange for shipping or pickup of the applicable Lot other than through Convelio, Inc, you and the Seller shall be responsible for arranging such shipping or pickup, including payment for such shipping, handling, packaging, and insurance costs (which costs shall be borne solely by you). If Seller pays for any such costs, you agree to immediately reimburse Seller therefor in the form of cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds. Seller may, but shall not be required to, accept other forms of payment.
- Seller shall be responsible for arranging the logistics of shipping, handling, and insurance unless you have opted to use Convelio, Inc for such purpose and arrange for their involvement through the Service or unless you agree to make such arrangements or arrange for the Lot to be picked up from a location of Seller’s choice. You shall be solely responsible for paying for all shipping, handling, and insurance fees and charges. You agree to act in good faith to arrange for the shipping or pickup of the Lot as soon as reasonably practicable after your payment of the Purchase Price and all applicable shipping, handling, and insurance costs and fees.
If you place a Winning Bid, you will be charged a fee determined in accordance with the Pricing and Payment Terms, which Pricing and Payment Terms are incorporated herein by reference. In connection with your Bid, we may place a hold on your credit card up to the maximum fee you may be required to pay pursuant to the Pricing and Payment Terms. At, or shortly following the conclusion of the Auction Bidding Period in which you are the Winning Buyer, we shall deliver an invoice to you stating the total amount owed in connection with such Winning Bid. You agree to pay the Purchase Price to the Company within ten (10) days of the close of the Auction Bidding Period via payment method acceptable to Greenhouse Auctions (including, without limitation, by authorizing us to charge your credit card already provided to us).
The Seller shall not be required to make the Lot available to you until the Purchase Price has been paid in full.
You shall not place a Bid on any Lot at the direction of or in coordination with a Seller of such Lot. You shall not take any other action to artificially increase the price of any Lot without the actual intent to purchase said Lot in good faith. In the event that you or any individual or entity acting on your behalf submits a Bid in contravention of this paragraph, we may hold you liable for paying the Buyer Premium associated with the actual Winning Bid, even if such Winning Bid is not placed by you.
You agree not to circumvent the Service in order to buy a Lot from a Seller who you contacted, or who contacted you, through the Service or otherwise. In the event such a sale takes place within ninety (90) days of the conclusion of an Auction Bidding Period, you agree to pay the applicable Buyer Premium to us, in accordance with the Pricing and Payment Terms, as if the sale were facilitated through the Service, such fees being calculated based on the Reserve or the actual sale price, whichever is greater.
Close of Sale
If you are the Winning Buyer, you agree to pay the Winning Bid (and all other fees comprising the Purchase Price), regardless of the actual final value of such Winning Bid or your belief regarding the actual value of the applicable Lot.
All transactions facilitated through the Service are strictly between Buyer and Seller. The Service facilitates the listing, marketing, and sale of Lots to wide audiences, and we connect Sellers and Buyers to consummate the purchase thereof through an auction system. It is the responsibility of the Buyer and Seller to finalize the transfer of title to a Lot, the shipping or other delivery of the applicable Lot, and compliance with all accompanying governmental rules and regulations.
While we will exercise reasonable efforts to prevent fraudulent use of the Service, we cannot be held liable for: (1) failure of a Seller to convey title or possession to you or (2) discovering that the Lot had previously been sold and that your purchase is a second or subsequent sale of the Lot.
If you pay for a Lot and Seller fails to properly convey and provide such Lot to you, free and clear of all liens, we encourage you to contact law enforcement authorities. We agree to provide our reasonable assistance to you in connection with such investigation.
Buyer Representations and Warranties
By submitting a Bid for a Lot, you represent and warrant that you (i) are of legal age to enter into a contract in the jurisdiction where you reside, (ii) that you intent to enter into a purchase transaction with the applicable Seller if you are the Winning Buyer of such Lot (iii) that you have the legal right and/or authority to purchase and hold title to the Lot, without any consent or notification to or from any third party, (iv) that you have available and liquid funds necessary to pay the full Purchase Price immediately upon the conclusion of the Auction Bidding Period, and (v) that all information provided by you when you registered for the Service is complete, accurate, and not misleading. You further agree that you shall update and maintain as current all contact and registration information you provide to us, whether through the Service or otherwise. Greenhouse Auctions reserves the right to request confirmation of your identity and contact information at any time and for any reason, and you agree to act in good faith and to provide reasonable cooperation, documentation, and/or other proof of identity and contact information requested by Greenhouse Auctions.
You understand and agree that we are not responsible for any description or condition of the Lot, and we make no representations or express any opinions concerning any Lot. We do not examine Lots or research title documentation or provenance, nor do we undertake any duty to do any of the foregoing for the benefit of Buyers, Sellers, or any other party.
No Resale; Right of First Refusal; Artist’s Commission
NO RESALE PERIOD
You agree that, for five (5) years following the date that you submit full payment of the Purchase Price for a particular Lot (the “No Resale Period”), you will not sell, auction, trade, or otherwise transfer title to the applicable Lot other than as a gift to a personal friend or family member and not in exchange for anything of value (a “Gift”); provided, however, that any such Gift to a friend or family member shall be accompanied by a written undertaking by such transferee to be bound by the terms of this section (including the restriction on sale of the Lot during the No Resale Period, the Right of First Refusal (defined below), the payment of the Artist’s Commission (defined below), and the requirement to ensure that any subsequent transferees of a Gift must also execute a written undertaking to be bound by the terms of this section). Any attempted or purported transfer of a Lot in contravention of this section shall be deemed null and void. Greenhouse Auctions, the applicable Seller, and the Artist (defined below) shall have the right to enforce this section and the No Resale Period and shall be deemed beneficiaries of this section.
RIGHT OF FIRST REFUSAL
If you (or the recipient of any Gift) (collectively, the “Offeror”) wish to sell, auction, trade, or otherwise transfer the Lot after the No Resale Period, the artist that originally created the Lot (as set forth in our Catalogue originally describing the applicable Auction Listing) (the “Artist”) shall have a right of first refusal, as set forth herein (the “Right of First Refusal”).
Prior to any transfer of a Lot you purchased on or through the Service (other than a Gift), Offeror shall first provide written notice of such proposed transfer to the Artist and to Greenhouse Auctions (the “Pre-Transfer Notice”). Greenhouse Auctions shall provide known and available contact information for the Artist or the Artist’s representative, but compliance with this Right of First Refusal shall at all times remain the sole responsibility of Offeror. The Pre‑Transfer Notice shall include: (i) the name of the Lot and/or other description sufficient to identify the Lot, (ii) the name of the person or entity to which the Offeror seeks to transfer the Lot or that has offered to purchase the Lot, (iii) the price proposed to be paid for the Lot and other material terms and conditions of the proposed transfer, including a description of any non‑cash consideration in sufficient detail to permit valuation thereof, and (iv) the proposed transfer date, which date shall not be less than sixty (60) days after the delivery of the Pre‑Transfer Notice.
Provision of the Pre-Transfer Notice shall constitute an offer by the Offeror to sell the applicable Lot back to the Artist, which offer shall be irrevocable for sixty (60) days after the delivery of the Pre‑Transfer Notice. By delivering the Pre‑Transfer Notice, the Offeror represents and warrants to Greenhouse Auctions and to the Artist that (i) the Offeror has full right, title, and interest in and to the Lot; (ii) the Offeror has all the necessary power and authority and has taken all necessary action to sell such Lot pursuant to this Right of First Refusal; and (iii) the Lot is free and clear of any and all liens and other encumbrances other than those arising as a result of or under the terms of this Agreement.
Upon receipt of the Pre‑Transfer Notice, the Artist shall have sixty (60) days to elect to purchase the Lot by delivering a written notice (the “ROFR Acceptance”) to the Offeror and Greenhouse Auctions stating that the Artist shall purchase the Lot on the terms set forth in the Pre‑Transfer Notice. If the Artist does not deliver a ROFR Acceptance during the aforementioned sixty (60) day period, the Offeror may transfer the Lot to the third‑party transferee named in the Pre‑Transfer Notice on terms and conditions no more favorable to such transferee than those set forth in the Pre‑Transfer Notice (a “Third‑Party Transfer”). If such transfer does not occur within one hundred eighty (180) days of the delivery of the Pre‑Transfer Notice, the rights provided hereunder shall be deemed to be revived and the Lot shall not be transferred unless the Offeree sends a new Pre‑Transfer Notice in accordance with, and otherwise in compliance with, this Right of First Refusal.
The Offeror and the Artist shall take all actions as may reasonably be necessary to consummate the sale contemplated by this Right of First Refusal, including, without limitation, entering into reasonable agreements and delivering other instruments as may be deemed necessary or appropriate.
Greenhouse Auctions, the applicable Seller, and the Artist shall have the right to enforce this section and the Right of First Refusal and shall be deemed beneficiaries of this section.
If Offeror is in full compliance with the terms and conditions of the Right of First Refusal, and the Artist declines to exercise such Right of First Refusal or otherwise fails to deliver a ROFR Acceptance, Offeror shall be required to pay to the Artist five percent (5%) of any proceeds received in connection with any Third‑Party Transfer (the “Artist’s Commission”). For the avoidance of doubt, if the Third‑Party Transfer involves consideration other than cash, the Offeror shall be required to pay five percent (5%) of the reasonable value of such consideration to the Artist, in cash or other liquid funds.
All payments between the Offeror and an Artist pursuant to the Right of First Refusal or the Artist’s Commission shall be made directly between the parties to such transaction. Greenhouse Auctions may, but shall not be required to, facilitate communication between the parties, but in no event shall Greenhouse Auctions be liable to an Offeror or an Artist in connection with a Right of First Refusal or Artist’s Commission, and Greenhouse Auctions shall not be a party to any such transaction. Payments required to be made in connection with any Right of First Refusal or Artist’s Commission shall be made by cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds.
In the event that you breach any provision of this Agreement, and/or if you fail for any reason to consummate the purchase of a Lot for which you are a Winning Buyer, in addition to and not in lieu of all remedies available in equity or at law, we and the applicable Seller shall have the right to:
- Hold you liable for actual damages, including, without limitation, the full amount of the Purchase Price pursuant to the Pricing and Payment Terms and any other amount payable by you; and/or
- Hold you liable for and charge to your credit card the maximum amount of Buyer Premium and Seller Fee that may have applied to your purchase and Seller’s sale of the applicable Lot.
In the event that either you or a Seller default on a transaction contemplated hereunder, we shall remain entitled to any fees applicable pursuant to the Pricing and Payment Terms.
In the event of a default by a Seller, you release us from all legal liability and agree to look only to the Seller for any recourse arising from said default. In such case, we shall provide contact information and other details regarding the Seller to allow you to pursue such recourse. If you default on your obligations under this Agreement, we may provide your contact information and other details to the applicable Seller.