SELLER’S GENERAL TERMS AND CONDITIONS
v.2022030101
The following terms and conditions (the “ Terms and Conditions”) apply between Ans Azura S.R.L., a limited liability company, incorporated in Romania, registration no. J23/5576/18.11.2020, tax no. RO43351692 (“Ans Azura”) and Sellers of works of art in relation to auctions, private sales and curated exhibitions organised on Ans Azura’s online platform https://ansazura.com (the “ Online Platform”).
By accessing and using the Online Platform, Sellers accept and agree to be bound by these Terms and Conditions.
Please read these Terms and Conditions carefully before using the Online Platform. Ans Azura may amend these Terms and Conditions from time to time. All amendments will be effective as of their publication on the Online Platform. Sellers accept and agree to be bound by such amendments and to access the Online Platform regularly in order to be informed about the updated Terms and Conditions.
These General Terms and Conditions together with the Specific Terms and Conditions executed between Ans Azura and each Seller shall constitute and be referred to as the “Agreement”.
1 Appointing Ans Azura as Agent
1.1 The Seller appoints Ans Azura as its exclusive agent to offer the Property for auction sale, private sale or private sale in the context of curated exhibitions on Ans Azura’s online platform ansazura.com (the “Online Platform”) and sell the Property on the terms of the Agreement.
1.2 The Seller and Ans Azura will agree upon the Starting Price / Reserve Price of the Property and upon the Seller’s Commission in the Specific Terms and Conditions. The Seller agrees that during auctions, Ans Azura has the right to waive its claim to the Seller’s Commission as agreed upon in the Specific Terms and to accept a Hammer Price lower than the Reserve Price, on the condition that, after the auction, the Seller receives an amount no lower than the Reserve Price after the deduction of the Seller’s Commission and of the other Seller’s Expenses as previously agreed upon by the Specific Terms. In the case of auctions, the Sale Price referred to under these Terms and Conditions will consist of the Hammer Price; in the case of private sales and curated exhibitions, the Sale Price will consist of either the price which will be listed on the Online Platform or provided to prospective buyers upon request.
1.3 The Seller will provide Ans Azura with recent and clear photos of the Property in compliance with clause 18 below. The Seller authorises Ans Azura to publish such photos on the Online Platform, as well as the details of the sale of the Property including, but not limited to, the purchase price and description of the Property.
1.4 Ans Azura gives no assurances that the Property will sell or that it can confirm the price for which it will sell or that any buyer will complete any transaction or otherwise perform as promised.
1.5 The Seller agrees that Ans Azura may give the buyer on the Seller’s behalf the warranties provided under paragraphs 5.1 and 5.2 below.
1.6 The Seller agrees that during the Term as may be extended in accordance with paragraph 10.1:
(a) save for the circumstance referred to under paragraph 12, it will not revoke Ans Azura’s authority to auction, privately sell or sell at a curated exhibition the Property on the Online Platform;
(b) it will not market, sell or exhibit the Property or make any attempts to such ends;
(c) it will not disclose to any third-party that the Property is for sale, except as agreed with Ans Azura or as publicly announced by Ans Azura, and will refer to Ans Azura any third- party that contacts the Seller regarding the sale of the Property.
2 Proof of Ownership
2.1 The Seller will provide Ans Azura with a copy of the Seller’s title of ownership over the Property. The provisions of paragraphs 5.1 and 5.2 remain applicable.
2.2 If the Seller is a joint owner of the Property, in addition to the copy of the Seller’s title of ownership over the Property and before signing this Agreement, the Seller will provide Ans Azura with a valid and duly signed power of attorney granted by all co-owner(s) for the Seller to act on their behalf and appoint Ans Azura to sell the Property on the terms of this Agreement.
2.3 If the Seller is not the owner of the Property but is acting on behalf of the owner(s) of the Property, in addition to the copy of the owner(s)’ title of ownership over the Property, the Seller will provide Ans Azura with a valid and duly signed power of attorney granted by (all) owner(s) for the Seller to act as agent on his/her/their behalf.
2.4 To the extent it deems necessary, Ans Azura may ask the Seller who is a co-owner of the Property or the agent of the owner(s) of the Property to also provide an acknowledgment form, in a format acceptable to Ans Azura, signed by the other co-owner(s) or by the owner(s) of the Property, confirming their acceptance of the terms and conditions of the Agreement. Ans Azura may refuse to offer for sale the Property until it has received such acknowledgment. Ans Azura reserves the right to ask and perform additional checks regarding any (co-)owner’s consent to the Agreement, including for example, by requesting a video call with the respective (co-)owner.
3 Condition and Authenticity of the Property
3.1 The Seller will provide Ans Azura with the most recent condition report concluded with respect to the Property, the certificate of authenticity of the Property or any other document proving the physical condition, origin/provenance and authenticity of the Property, as well as, if applicable, documents showing the storage requirements of the Property (including without limitation the storage temperature).
3.2 The Seller authorises Ans Azura to deliver to the buyer all documents about the physical condition, origin / provenance and authenticity of the Property and agrees that Ans Azura may perform or contract a third party to perform certain verifications in relation to the Property.
3.3 The Seller will not hold Ans Azura responsible for any property claims or any latent defects (in Romanian, “vicii ascunse”) in connection with the ownership and/or condition of the Property.
4 Storage and Collection of the Property
4.1 Storage of the Property outside of Ans Azura’s storage facilities
4.1.1 Unless otherwise agreed, as of the signing date of the Agreement and until the Property is collected by Ans Azura, by the shipper instructed by Ans Azura on its behalf, or by the final buyer, the Property will be stored in the same storage facilities as at the signing date of this Agreement. The Seller agrees that Ans Azura has the right to inspect the Property at any time until the Property is collected and the Seller undertakes to ensure at all times, upon prior notice, Ans Azura’s access to such storage facilities.
4.1.2 If by the expiry of the Term, a sale agreement is concluded with respect to the Property, Ans Azura and the buyer will arrange for the shipping of the Property and Ans Azura, the shipper instructed by Ans Azura on its behalf, or the final buyer will collect the Property at the latest within 30 business days (i.e. any day which is not a Saturday or a Sunday or a public holiday in Romania, hereinafter “Business Day”) as of the signing date of the sale agreement with the buyer. The Seller agrees that during this time-period it will make every reasonable effort to collaborate with Ans Azura with respect to the collection of the Property.
4.1.3 If Ans Azura does not wish to store the Property at its own storage facilities, and the Property is currently stored in a location controlled exclusively by the Seller, Ans Azura and the Seller hereby conclude a custody of goods agreement whereby Ans Azura, as depositor appoints the Seller as custodian of the Property until further notice, in the location under the Seller’s control. The Seller is fully liable for the safe storage of the Property under conditions jointly agreed with Ans Azura and undertakes to grant access and to release the Property it holds on custody for Ans Azura, upon the first written request received (including by e-mail) from the latter, to Ans Azura’s representative, to the shipper instructed by Ans Azura on its behalf or to the final buyer.
4.1.4 If Ans Azura does not wish to store the Property at its own storage facilities, and the Property is currently stored in a location controlled by a third party appointed by the Seller (such as a third-party storage facility), the Seller undertakes to inform such third-party that Ans Azura is the new depositor as of the signing date of this Agreement and appoints the third party as custodian of the Property for Ans Azura until further notice. The Seller undertakes to ensure that the third party will grant access and release the Property it holds on custody for Ans Azura, upon the first written request received (which can be sent by e-mail) from the latter, to Ans Azura’s representative, to the shipper instructed by Ans Azura on its behalf or to the final buyer.
4.1.5 If a sale agreement is not concluded by the expiry of the Term, any custody agreement concluded in accordance with the above paragraphs will cease on the date on which the Term expires. If a sale agreement is concluded before the expiry of the Term, the custody agreement will be automatically extended until the Property is collected by Ans Azura, the shipper instructed by Ans Azura on its behalf, or the final buyer in accordance with paragraph 4.1.2 above.
4.1.6 For the avoidance of doubt, all costs in relation to the safekeeping of the Property in accordance with this paragraph 4.1, including without limitation storage and insurance costs, will be borne by the Seller.
4.1.7 Under this paragraph 4.1, the Seller is solely liable for any damages or losses of the Property which may occur as of the signing date of this Agreement and (i) until the Property is collected by Ans Azura or by the shipper instructed by Ans Azura on its behalf or by the final buyer, or (ii) if the Property is not sold, by the expiry date of the Term.
4.1.8 Ans Azura reserves the right to request the delivery of the Property to its own storage facilities in accordance with paragraph 4.2 below, at any time before the end of the Term, by sending a written notice (which can be sent by e-mail) to the Seller (the “Handover Notice”). For the avoidance of doubt all costs related to the delivery of the Property to Ans Azura's storage facilities will be borne by the Seller in accordance with paragraph 4.2.4 below.
4.2 Storage of the Property at Ans Azura’s storage facilities or at storage facilities indicated by Ans Azura
4.2.1 The Seller and and Ans Azura may agree that the Property will be delivered to Ans Azura’s storage facilities or to storage facilities indicated by Ans Azuraand Ans Azura will exhibit or display the Property before the online auction/private sale. In such circumstances, the Seller will deliver the Property to Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azura or make it available for collection by Ans Azura or by the shipper indicated by Ans Azura on its behalf, within 5 Business Days as of the signing date of this Agreement or within 5 Business Days as of the date when it receives a Handover Notice in accordance with paragraph 4.1.8.
4.2.2 Upon receipt of the Property as per paragraph 4.2.1. above, Ans Azura or a shipper appointed by Ans Azura will conclude handover-takeover minutes confirming the receipt of the Property and stating whether the Property presents any visible damages which were not disclosed before shipment or if there are visible features which do not correspond to the Seller’s description. For the avoidance of doubt, Ans Azura’s observations in the handover-takeover minutes will not be based on a thorough analysis of the Property and will only refer to manifest damages or inconsistencies with the Seller’s description of the Property which may be observed at a prima facie analysis. This provision is without prejudice to the Seller’s representations and warranties provided under paragraphs 5.1 and 5.2 below.
4.2.3 Ans Azura will provide the handover-takeover minutes to the Seller within 7 Business Days as of the receipt of the Property. If Ans Azura finds that the Property presents any visible damages or inconsistencies which were not disclosed before shipment and/or it does not correspond to the Seller’s description, Ans Azura may cancel the Agreement as per paragraph 6 below.
4.2.4 The Seller will cover the costs of:
(a) packing, crating, transportation and any other costs related to the shipment of the Property to Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azura;
(b) packing, crating, transportation and any other costs related to the shipment of the Property from Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azurato the Seller, if the Property is not sold;
(c) any customs, export or import duties and charges related to the shipment of the Property from the Seller to Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azura and, if the case, from Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azura to the Seller;
(d) any reasonable and customary maintenance costs incurred in relation to the Property after it was delivered to Ans Azura’s storage facilities or to the storage facilities indicated by Ans Azura and the handover-takeover minutes were signed.
4.2.5 During the Term, Ans Azura may provide the Property to a third-party only for the purposes of performing an inspection required by the buyer. This is without prejudice to paragraph 9 below, which remains applicable during such inspections.
4.2.6 In all circumstances, the Property will be handed over to the buyer after Ans Azura confirms having received from the buyer the Sale Price and any other applicable costs, fees or taxes payable by the buyer in full and cleared funds.
5 Seller’s Representations and Warranties
5.1 The Seller provides Ans Azura and the buyer the following representations and warranties:
(a) it is the owner of the Property or the joint owner of the Property, and in this latter case it has a duly signed and valid power of attorney granted by all co-owner(s) for the Seller to act on their behalf and appoint Ans Azura to sell the Property on the terms of this Agreement or it is not the owner of the Property but has a duly signed and valid power of attorney granted by all owner(s) for the Seller to act on their behalf and appoint Ans Azura to sell the Property on the terms of this Agreement;
(b) the Seller and all other owner(s), if any, will be jointly and severally responsible for performing the Seller’s obligations under this Agreement;
(c) the title over the Property is unchallenged and is free and clear of any incumbrance (including any option, pre-emption rights or any other right to acquire or pledge the Property);
(d) if applicable, the Property was lawfully imported into the jurisdiction in which it is currently located, any applicable tariffs and taxes have been properly paid and all financial, legal and disclosure requirements relating to exporting or importing the Property were met;
(e) it has the right to transfer ownership of the Property to the buyer without any restrictions or claims by anyone else or if any consent was required it has been obtained and proved to Ans Azura;
(f) it has capacity and authority to enter into the Agreement and perform the obligations hereunder;
(g) no contravention – the Seller’s entering into this Agreement and performance of its obligations hereunder does not contravene any law, contract, court order, or any other document which the Seller is legally obliged to comply with;
(h) if the Seller is a legal person – all proper corporate authorisations have been obtained;
(i) it is not insolvent and no proceedings were initiated against it under any bankruptcy or insolvency laws;
(j) it does not know and has no reason to suspect, that the Property is connected with the proceeds of any crime (including proceeds arising from tax evasion) or is connected to any tax fraud event;
(k) it has informed Ans Azura in writing with respect to all and any alterations, repairs or restoration to the Property that they are aware of;
(l) it has informed Ans Azura and will continue to inform Ans Azura throughout the Term about all aspects that they know of and which might affect the sale or value of the Property or may lead to Ans Azura ‘s not willing to accept the Property for sale;
(m) if applicable, it has verified any electrical or mechanical part of the Property and made sure that is in a safe operating condition;
(n) there is no claim against the Seller, the other owner(s) or any claims regarding the Property, that may affect the transfer of ownership over the Property;
(o) it has provided Ans Azura and will continue to provide Ans Azura upon request with all the documents proving the authenticity, origin or physical condition of the Property (including without limitation the condition report or the certificate of authenticity of the Property) as may be reasonably required for this type of transactions as well as all information the Seller is aware of in relation to the physical condition, origin and authenticity of the Property;
(p) will comply with all applicable anti-money laundering law, will provide Ans Azura with all and any information and documentation required under the applicable anti-money laundering law and accepts to act in accordance with Ans Azura’s Anti-Money Laundering Policy, as amended or updated from time to time;
(q) it accepts that Ans Azura will hold and process the Seller’s personal data in accordance with Ans Azura’s Privacy Policy, available on the Online Platform, as amended or updated from time to time;
(r) it will inform Ans Azura as soon as they know about or have reason to suspect that there is any misrepresentation, breach of warranty or that any representations warranties are or may become untrue;
(s) it holds the copyrights in relation to the images, photographs, recordings, written materials and any other such materials in relation to the Property or that, prior to the conclusion of the Agreement, it has received the explicit consent of the person(s) holding such copyrights in relation to images, photographs, recordings, written materials and any other such materials in relation to the Property.
5.2 If the Seller is not the owner of the Property but acts as agent on the owner(s) behalf, the Seller provides Ans Azura and the buyer the following representations and warranties in addition to the representations and warranties listed under paragraph 5.1 above:
(a) it is authorised by the owner(s) to act on their behalf and appoint Ans Azura to sell the Property on the terms of this Agreement;
(b) the Seller and the owner(s) of the Property, will be jointly and severally responsible for performing the Seller’s obligations under this Agreement;
(c) it is irrevocably authorised to receive the Proceeds of Sale on behalf of the owner(s) of the Property and it informed the owner(s) of the Property that Seller’s Commission and sale expenses, to the extent applicable, together with any applicable taxes will be deducted from the Sale Price;
(d) it will deduct other commissions, costs or amounts from the Proceeds of Sale it receives from Ans Azura on behalf of the owner(s) of the Property only after it obtains their consent to this end;
(e) the arrangements between the Seller and its principal in relation to the Property or otherwise do not, in whole or in part, facilitate tax evasion or tax fraud and the Seller does not know, and has no reason to suspect, that its principal is under investigation, charged with or convicted of money laundering, terrorist activities or other crimes and:
(f) it will inform its principal that Ans Azura will hold and process their personal data as described in Ans Azura Privacy Policy available on the Online Platform, as amended or updated from time to time.
6 Transfer of Ownership and Risk. Handover to the buyer
6.1 The ownership over the sold Property will be transferred to the buyer when Ans Azura receives from the buyer the Sale Price and any other applicable costs, fees or taxes payable by the buyer in full and cleared funds.
6.2 Risk and responsibility in relation to the Property will be transferred to the buyer upon the handover of the Property to the buyer or its representatives (including any agent appointed by the buyer for such delivery or, in the absence of an appointed agent, the shipment company).
6.3 The Property will be handed over to the buyer or its representatives only after Ans Azura receives from the buyer the Sale Price and any other applicable costs, fees or taxes payable by the buyer in full and cleared funds. For the avoidance of any doubt, if the Property is stored as per paragraph 4.1 above at a location outside of Ans Azura’s control, the depositor of the Property will only release and hand over the Property to the buyer in accordance with Ans Azura’s instructions and after Ans Azura’s written confirmation that it has received the Sale Price and any other applicable costs, fees or taxes payable by the buyer in full and cleared funds.
7 Seller’s Liability
7.1 The Seller is liable towards Ans Azura for any and all costs, losses and damages of any kind associated with any claim or dispute arising out of or in connection with a misrepresentation or breach of warranty provided under paragraph 5.1 and 5.2 or arising out of or in connection with a breach of the obligations under this Agreement, or out of any violation of any law or the rights of any third-party and will indemnify Ans Azura for all such costs, losses and damages.
7.2 The Seller agrees that Ans Azura has the right to defend or settle at its own discretion any third-party claim or dispute referred to under paragraph 7.1 above and the Seller agrees to reimburse Ans Azura any such dispute or settlement costs.
7.3 If the Seller is the joint owner of the Property, the Seller and all other owner(s) will be jointly and severally liable towards Ans Azura.
7.4 If the Seller is acting on behalf of the owner(s) of the Property, the Seller and the owner(s) of the Property will be jointly and severally liable for performing the Seller’s obligations under this Agreement.
8 Responsibility in Case of Non-Performance or Returns by the Buyer
8.1 The Seller agrees that Ans Azura does not bear any responsibility towards the Seller in case of non-performance of contractual obligations by the buyer including without limitation in case of non-payment of the Sale Price by the buyer.
8.2 The Seller agrees that Ans Azura does not bear any responsibility towards the Seller in case the buyer returns the Property, including without limitation pursuant to the applicable EU and Romanian consumer protection laws. The Seller acknowledges and agrees that by selling the Property through the Online Platform owned by Ans Azura, the buyer may be entitled to exercise the right of withdrawal recognized by law to consumers.
8.3 If it is determined that, in accordance with the applicable law, a buyer may exercise the right to withdraw from the sale agreement concluded with respect to the Property within a certain period of time after the buyer (other than the carrier) acquired physical possession of the Property, the Seller undertakes to reimburse Ans Azura upon notice the Proceeds of Sale transferred to it by Ans Azura, in order for Ans Azura to reimburse the full price received from the buyer. If the Seller fails to reimburse the Proceeds of Sale within 5 Business Days after Ans Azura’s notice, Ans Azura shall be entitled to request that the Property is returned by the buyer to a location under its control and may exercise the right to sell the Property in accordance with paragraph 11 below.
8.4 In the circumstance provided under paragraph 8.3 above, the Seller agrees that Ans Azura may sell the Property within one month as of the date of the receipt of the returned Property by Ans Azura and the terms and conditions of this Agreement will continue to apply during such a period, and, if applicable, the Term will be deemed extended until the end of such one-month period.
8.5 If the Property is not sold as per paragraph 8.4 above and conditional on the prior reimbursement in accordance with paragraph 8.3 above of any Proceeds of Sale paid to the Seller, the Seller will collect the unsold Property within one month as of the expiry of the one-month period referred to under paragraph 8.4 above. If Ans Azura is responsible for returning the Property to the Seller, the Seller will fully cooperate with Ans Azura in order to make sure that Ans Azura can return the Property.
9 Responsibility for Physical Loss of or Damages to the Property. Insurance
9.1 Ans Azura undertakes to conclude an insurance policy covering the physical loss of or damages to the Property which may occur during transportation of the Property under Ans Azura’s or Ans Azura’s shippers’ control or, where applicable, when the Property is stored in Ans Azura’s storage facilities or the storage facilities indicate by Ans Azura as per paragraph 4.2 above and/or during the exhibition of the Property at Ans Azura’s exhibition facility or at an exhibition facility indicated by Ans Azura.
9.2 The Seller accepts that (a) Ans Azura’s total liability for physical loss or damages to the Property as per paragraph 9.1 above shall be limited be to the lesser of (i) the amount of the Proceeds of Sale corresponding to the Property; or (ii) the minimum amount for the Sale Price agreed with the Seller represented by the reserve price; and (b) Ans Azura will not be liable for any physical loss or cause damages to goods which are ancillary to the Property, including without limitation picture frames.
9.3 For any instance where the Property is stored outside of Ans Azura’s storage facilities or the storage facilities indicated by Ans Azura, as detailed in paragraph 4.1, up to the moment when the Property is collected by Ans Azura, by the shipper instructed by Ans Azura on its behalf, or by the final buyer, the Seller shall be responsible for insuring the Property against any possible damage or loss under terms and conditions appropriate for the Property and as agreed with Ans Azura and shall present a copy of the insurance policy to Ans Azura upon request.
9.4 For any instance where the Property is stored at Ans Azura’s storage facilities or at the storage facilities indicated by Ans Azura, as detailed in paragraph 4.2, starting from the moment when the Property arrives at Ans Azura’s facility or the storage facilities indicated by Ans Azura and is handed over to Ans Azura representatives, Ans Azura may arrange for the insurance of the Property (i) in its own name and for the benefit of the Seller or (ii) in its own name and for its own benefit, with the obligation to transfer any compensation received under the policy to the Seller, less any expenses incurred in obtaining the compensation. In this case, the Seller shall cover any expenses for the conclusion of such insurance policy in advance or, if the costs are borne by Ans Azura, the Seller will reimburse such costs to Ans Azura within 3 Business Days upon receiving notice from Ans Azura. For the avoidance of doubt, the insurance of the Property in transit (from the Seller’s to Ans Azura’s facility or to the storage facilities indicated by Ans Azura) shall be the responsibility of the Seller.
9.5 Should any event occur giving right to a claim under the insurance policy concluded in accordance with paragraphs 9.3 and 9.4, the liability of Ans Azura shall be excluded to the extent that the Seller is awarded any compensation by the insurance company for the insured Property. Ans Azura shall take reasonable measures and cooperate with the Seller for any formalities and proceedings required in order to obtain compensation from the insurance company and shall be entitled to the reimbursement of the expenses incurred (including lawyers’ fees) in the process of obtaining such compensation.
10 Unsold Property and Rights of Retention
10.1 If the Property is not sold by the end of the Term, the Seller agrees that Ans Azura may sell the Property within one month as of the end of the initially agreed Term and the terms and conditions of this Agreement will continue to apply during such a period, and the Term will be deemed extended automatically by such one-month period.
10.2 If the Property is not sold as per paragraph 10.1 above, the Seller will collect the unsold Property within one month as of the expiry of the one-month period referred to under paragraph 10.1 above. If Ans Azura is responsible for returning the Property to the Seller, the Seller will fully cooperate with Ans Azura in order to make sure that Ans Azura can return the Property.
10.3 If the Seller fails to collect the Property as per paragraph 10.2 above or when Ans Azura is responsible for returning the Property to the Seller, if Ans Azura attempted to return the Property but was unable to do so because of the Seller’s unavailability or lack of cooperation, the Seller will incur daily maintenance, storage, transport and insurance costs and fees and will cover any applicable taxes in relation to the unsold Property until it collects the Property.
10.4 If the Property was delivered to Ans Azura’s storage facilities or the storage facilities indicated by Ans Azur as per paragraph 4.2 above and the Property is not sold at the end of the Term or as per paragraph 10.1 above, Ans Azura may retain such unsold Property until the Seller pays Ans Azura all the outstanding amounts which were not paid to Ans Azura, including without limitation all taxes or import duties applicable in relation to the Property, if applicable. Ans Azura will also keep the Property if it is under an obligation to do so pursuant to applicable legal provisions, a court order or a public authority’s request.
11 Right to Sell any Unsold Property and Set-off
11.1 If the Property is not sold at the end of the Term or as per paragraph 10.1 above or if the Property is sold but returned to Ans Azura in accordance with paragraph 8.3 above, and there are any outstanding amounts which were not paid by the Seller to Ans Azura, Ans Azura may sell such property in any way that it deems commercially reasonable within a time period of 3 months as of the closing of the auction. For the avoidance of doubt, in such circumstances, there will be no minimum price limitation applicable to the sale of the Property.
11.2 Ans Azura may set off the Proceeds of Sale and any other outstanding amounts which were not paid to the Seller against any outstanding amounts which were not paid by the Seller to Ans Azura. For the avoidance of any doubt, Ans Azura may settle any claims it may have against any amounts it cashes from the sale of any Property, even if the claim arises in relation to a different Property of the Seller or in relation to any of the Seller’s obligations under this agreement or under a different agreement.
12 Revocation of Authority and Withdrawal from Auctions / Private Sales / Curated Exhibitions
12.1 The Seller may revoke Ans Azura’s authority to offer the Property for sale at auctions, private sales or curated exhibitions only if Ans Azura has breached any of its material obligations under this Agreement in a way that cannot be remedied, or has not been remedied before the expiry of the Term or within 10 Business Days as of the receipt of the written notice whereby the Seller informed Ans Azura about such a breach.
12.2 The Seller may revoke Ans Azura’s authority as per paragraph 12.1 only if it informed Ans Azura in writing about Ans Azura’ breach of its material obligation. The Seller has to inform Ans Azura within 3 Business Days from the time that the Seller learns of any such material breach.
12.3 If the Seller attempts to or revokes Ans Azura’s authority in breach of this Agreement (including by refusing Ans Azura’s right to put the Property on sale in accordance with this Agreement or by refusing to handover the sold Property or informing Ans Azura about its intention to refuse the handover in accordance with this Agreement etc.), the Seller will pay Ans Azura 30% of the starting price in case of auction sales and 30% of the Sale Price agreed upon by Ans Azura and the Seller in case of private sales or curated exhibitions, as well as any and all reasonable costs and expenses (including legal fees) incurred by Ans Azura in relation to the Property and the offering for sale of the Property until the Seller revoked Ans Azura’s authority. The Seller will pay such amounts within 5 Business Days as of the date on which it revoked Ans Azura’s authority.
12.4 Ans Azura may cease offering the Property for sale and withdraw the Property from auctions/private sales/curated exhibitions before the expiration of the Term if:
(a) There is any breach of, or Ans Azura has reasonable doubts regarding the truthfulness or accuracy of, any of the Seller’s representations and warranties in paragraphs 5.1 and 5.2 or any of the Seller’s confirmations set out in paragraphs 17.1 and 17.3;
(b) the Seller breached any of its obligations under this Agreement in a way that cannot be remedied, or has not been remedied before the expiry of the Term or within 10 Business Days as of the receipt of the written notice whereby Ans Azura informed the Seller about such a breach;
(c) Ans Azura becomes aware (upon performing an inspection of the Property in accordance with paragraphs 4.1 or 4.2 above or otherwise), that the Property presents any damages which were not disclosed before the signing of the Agreement or it does not correspond to the Seller’s description;
(d) Ans Azura reasonably considers that offering the Property for sale or selling the Property will be illegal, may render it liable towards any third-party or cause damages to Ans Azura’s reputation, or there is any other just cause which justifies such a withdrawal.
12.5 If the Property was delivered to Ans Azura as per paragraph 4.2 above and the sale is cancelled, Ans Azura will return the Property to the Seller and the latter will accept the return. Within 7 Business Days as of the return of the Property, the Seller will repay any sums paid by Ans Azura in relation to such Property.
12.6 If the sale is cancelled as a result of the Seller’s actions or failure to act, the Seller will be liable towards Ans Azura for any loss, damages, expense or cost including without limitation any legal fees and any other amounts that Ans Azura would have to pay.
12.7 If the Property was delivered to Ans Azura as per paragraph 4.2 above and Ans Azura withdraws the Property from auction/private sale, Ans Azura will return the Property to the Seller and the latter will accept the return within 1 month as of the withdrawal of the Property from auction/private sale.
12.8 If Ans Azura withdraws the Property from the auction/private sale/curated exhibition, Ans Azura may terminate this Agreement with immediate effect by sending a written notice to the Seller.
13 Taxes
13.1 The Seller will bear any taxes imposed on the sale of the Property that are personal to the Seller.
13.2 Any taxes that may be withheld or applied in relation to the sale of the Property will be determined on a case-by-case basis, taking into account such details as: the tax residence of the Seller and of the buyer, the status of the buyer (legal entity/natural person) the location of the Property at the time of the sale and the place for its delivery to the buyer etc. Any taxes determined as applicable in connection with a specific sale will be borne by the Seller of the Property in accordance with the provisions of the Specific Terms and Conditions, and, to the extent required by law, will be withheld and paid to the authorities by Ans Azura.
14 Confidentiality
14.1 The Seller and Ans Azura agree to keep the Seller’s identity and the terms of this Agreement confidential unless otherwise agreed by the Seller and Ans Azura or as required by applicable law.
14.2 The provisions of paragraph 14.1 above will not apply to any information provided by the Seller or Ans Azura to their respective legal and financial advisors and insurers and information used to perform their respective obligations under this Agreement.
15 Assignment of Rights and Responsibilities
15.1 The Seller may grant a security over or assign its rights or responsibilities under this Agreement only with Ans Azura’s prior written consent. Nonetheless, this Agreement will be binding on the Seller’s estate, heirs and anyone who takes over the Seller’s responsibilities.
15.2 Ans Azura may assign its rights under this Agreement in connection with any Property under this Agreement to the companies within Ans Azura’s group.
16 Data Protection
16.1 The parties to this Agreement consent to comply with the data protection provisions applicable in the country of incorporation of Ans Azura.
16.2 The Seller agrees that Ans Azura will hold and process the Seller’s personal data in accordance with Ans Azura’s Privacy Policy, available on the Online Platform, as amended or updated from time to time.
17 Identification of the Seller
17.1 The Seller confirms that the Seller’s name, address and other identification data provided in the Specific Terms and Conditions are true and accurate.
17.2 The Seller agrees to provide Ans Azura with any information and documents that Ans Azura may reasonably need in order to comply with its client identification and registration procedures, including without limitation procedures required under Ans Azura’s Anti-Money Laundering Policy and any applicable anti-money laundering laws.
17.3 accepts that it has has to sign and return the fully executed know-your-customer (KYC) form provided by Ans Azura, to present to Ans Azura a copy of a valid identification document (national identification document, passport or other valid identification document, if the Buyer is a natural person or a certificate of incorporation or an equivalent of such a document, if the Buyer is a legal entity) before the establishment of the business relationship or the carrying out of the transaction or or to present to Ans Azura any required KYC and AML documents on matters such as the source of funds of the Buyer and the beneficial owner of the Buyer and enabling Ans Azura to determine beyond doubt that the Seller is not subject to any sanctions or restrictions for selling the Property and that the Property originates from legitimate sources, as required by the applicable laws on anti-money laundering and countering the financing of terrorism.
17.4 The Seller confirms that all information and documents provided to Ans Azura are true and accurate and are originals or true copies of the originals.
17.5 The Seller accepts that its failure to meet Ans Azura’s requests under this paragraph 17 entitles Ans Azura to decide at its sole discretion not to establish a business relationship with such Seller, not to carry out the transaction or to cease offering the Property for sale or withdraw the Property from auction / private sales / curated exhibitions before the expiration of the Term.
18 Copyright
18.1 The Seller acknowledges the directly linked benefits arising from the public display of the Property on the Ans Azura Platform (including without limitation the public promotion and marketing for the future sale of the Property) and agrees and accepts that Ans Azura has the right to photograph, record or reproduce images or recordings of the Property by any means in any manner it considers appropriate, to permanently store them and develop derivative works from the images, photographs, recordings, written materials and any other materials in relation to the of the Property, as it deems appropriate, before or after the auction/curated exhibition/direct sale,subject to the provision of the applicable law. These rights are non-exclusive, territorially unlimited and valid for the maximum term allowed by the law, Ans Azura having the right to assign them further to third parties.
18.2 The copyright subsisting in such images, photographs, recordings, written materials and any other materials in relation to the Property and any other materials produced by or for Ans Azura or the copyright in relation to images, photographs, recordings, written materials and any other materials in relation to the Property transferred by the Seller (or any third party holding such copyrights) will belong to Ans Azura and may be used by any third-party only with Ans Azura’s prior consent.
19 Marketing
19.1 The Seller agrees that Ans Azura may decide at its sole discretion how to market the Property. If the Seller and Ans Azura agree that the Property will be delivered to Ans Azura and Ans Azura will exhibit or display the Property before the online auction/private sale, the Seller agrees that Ans Azura may decide at its sole discretion how to exhibit or display it.
20 Artist Resale Royalty ('Droit de Suite')
20.1 Ans Azura has the right (but not the obligation to collect any artist resale royalty which may apply in relation to the sold Property in favour of the artist or the artist’s estate, and to pay such royalty to the artist, the artist’s estate or to the collective management organisation authorised to collect the royalty.
20.2 The works of art which are subject to artist resale royalty rights ('droit de suite') are marked with an * in the description of the work of art. The amount of the royalties is calculated using a sliding scale of percentages of the Hammer Price, in accordance with the applicable legal provisions.
20.3 If Ans Azura decides to exercise its rights in accordance with paragraph 20.1, Ans Azura will endeavour to collect the applicable artist royalty from the buyer.
20.4 The Seller agrees that if the royalty referred to under paragraph 20.1 above is not collected from the buyer but is nonetheless paid by Ans Azura, Ans Azura may deduct the royalty from the Proceeds of Sale and that if Ans Azura has not deducted the royalty from the Proceeds of Sale, the Seller agrees to reimburse such royalty to Ans Azura within 3 Business Days as of Ans Azura’s request in this respect.
20.5 For the avoidance of any doubt, the Seller agrees that it is responsible to pay the royalty even in the circumstance in which the buyer is charged the royalty but fails to pay it.
20.6 The Seller acknowledges that the artist resale royalty may be subject to withholding tax to be determined on a case-by-case basis. The Seller undertakes to bear such withholding tax if, according to the applicable law, the Seller is liable to pay it and also accepts that Ans Azura may elect to pay such withholding tax on its behalf from the Proceeds of the Sale.
21 Notices
21.1 Notices to Ans Azura and the Seller will be addressed to the address and e-mail address included in the Specific Terms and Conditions of the Agreement.
21.2 Notices may be sent in physical form with confirmation of receipt or by e-mail.
22 Other Conditions
22.1 This Agreement (together with all the documents referred to herein) constitutes the entire agreement and understanding between the Seller and Ans Azura with respect to the Property and replaces and supersedes any and all prior agreements, undertakings or statements between the Seller and Ans Azura relating to the Property.
22.2 If any of the provisions of this Agreement are held to be illegal, invalid or unenforceable in whole or in part, the legality, validity and enforceability of the remainder of this Agreement shall not be affected and shall remain in full force and effect.
22.3 Any provisions of this Agreement that are expressly or implicitly intended to be effective or continue to be effective on or after the termination of this Agreement shall remain in full force and effect.
22.4 This Agreement was executed in English. If the parties are required to provide a translation of this Agreement, in case of discrepancies between the original versions and the translation or in case of any disputes in relation to this Agreement, the English version will prevail.
23 Governing Law and Dispute Resolutions
23.1 The rights and obligations of the parties to this Agreement arising out of or in connection with this Agreement, including non-contractual obligations and any matters arising out of or in connection with this Agreement will be governed by and construed in all respects in accordance with the laws of Romania.
23.2 Any dispute or claims arising out of or in connection with this Agreement including non-contractual obligations and any matters arising out of or in connection with this Agreement, which has not been amicably resolved by the parties within 30 days, shall be referred to and exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Paris and the proceedings shall be conducted in English. No award or procedural order made in the arbitration shall be published.
23.3 Notwithstanding paragraph 23.2, the Parties acknowledge that Ans Azura has the right to waive the exclusive jurisdiction in favour of ICC arbitration and initiate proceedings against the Seller before the courts in the jurisdiction of domicile/incorporation of the Seller.
