Terms of Use Agreement
Terms of Use Agreement
Welcome to Tarisio.com, the website and online service of Tarisio and affiliated entities (“Tarisio,” “we,” or “us”). This page explains the terms by which you may use our online services, web site, and software provided on or in connection with our services (collectively the “Service”). By accessing or using the Service, you signify that you have read, understood, and agree to be bound by this Terms of Use Agreement (“Agreement”) and to the collection, use, and disclosure of your information as set forth in the Tarisio Privacy Policy (tarisio.com/privacy-policy/), whether or not you are a registered user of our Service. Tarisio reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES YOU TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS BY JUDGES, RATHER THAN BY JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
The Tarisio Service provides a venue for Users to place for sale at auction, bid on, and purchase musical instruments, bows, and other specialty items and combinations of such items (“Lot(s)”) through Tarisio’s online auction services (the “Auction”). As used in this Agreement, any User who places a Lot for sale through the Auction is referred to as a “Seller”; any User who bids on a Lot through the Auction is referred to as a “Bidder”; and any User who purchases a Lot through the Auction is referred to as the “Buyer.”
1.1 Eligibility
You may use the Service only if you can form a binding contract with Tarisio, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 years of age is strictly prohibited and in violation of this Agreement. The Service is not available to any Users previously removed from the Service by Tarisio.
1.2 Tarisio Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Tarisio reserves all rights not expressly granted herein in the Service and the Tarisio Content (as defined below). Tarisio may terminate this license at any time for any reason or no reason.
1.3 Tarisio Accounts
You may not participate in any Auction unless you register with the Service in accordance with the terms and conditions of this Section. If you would like to be a Bidder or Buyer, you may register for the Service by filling out our online form located on the Service (tarisio.com/auctions/register-to-bid/) or by calling us at the number provided on the Service (+1.212.307.7224 or +44 (0) 20 7354 5763 or +49 30 9404 5443), or through such other method as we may provide from time to time. In order to place any Lots for auction through the Service and become a Seller, you must first enter into a separate written consignment agreement with Tarisio governing the applicable Lots (each, a “Consignment Agreement”). Tarisio has no obligation to enter into any Consignment Agreement with any User. You acknowledge and agree that you may be required to pay a fee in order to register for the Service (“Registration Fee”), and you agree to pay any such Registration Fee. Tarisio may reject the registration of any User in its sole discretion and at any time. You further acknowledge that pre-approval by Tarisio may be required in order to bid on certain Lots, and that such pre-approval may be withheld by Tarisio for any reason, in its sole discretion.
Your Tarisio account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Tarisio account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. You may never use another User’s account without permission. When creating your account or registering to bid or submitting any request for pre-approval, you must provide accurate, current, and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your account. You must notify Tarisio immediately of any breach of security or unauthorized use of your account. Tarisio will not be liable for any losses caused by any unauthorized use of your account. You may control your Bidder profile and how you interact with the Service by clicking on the “Your Account Info” link on the Service and by changing the settings in your Profile Page. By providing Tarisio your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your Profile Page. Opting out may prevent you from receiving email messages regarding sale notices, updates or offers.
1.4 Service Rules
You agree not to engage in any of the following prohibited activities in connection with the Service: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Tarisio servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Accessing the audiovisual content available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Tarisio Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement with respect to any provisions which, either explicitly or implicitly, are intended to survive the termination of this Agreement.
If and to the extent the Service should at any time permit any form of interaction with other Users, you will remain solely responsible for your interactions with other Tarisio Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Tarisio shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. Auction Terms
2.1 General
The terms and conditions of this Agreement expressly apply to and govern the sale, bidding on, and purchase of all Lots offered through the Auction. By using the Auction services in any manner, including without limitation selling, bidding on, or purchasing any Lot at the Auction, or acting as an agent for a Seller or Buyer, you expressly agree to the applicable terms and conditions of these “Auction Terms,” in addition to the other applicable terms and conditions of this Agreement.
2.2 Bids and Bidding
To place a bid through the Auction, you must follow the instructions located on the Service (tarisio.com/buyers-sellers/buyers/bidding/). All bids for Lots being sold in the United States must be stated in US Dollars. All bids for Lots being sold in the United Kingdom must be stated in Pounds Sterling. All bids for Lots being sold in Germany must be stated in Euro. Bidding for each Lot will often begin at an amount several bidding increments below the low pre-sale estimate. Certain Lots may be offered with a “Buy Now” bid option, which will be available until the normal bidding period opens (or if earlier, the date another buyer chooses the “Buy Now” option for that lot). By placing any bid on a Lot, you acknowledge and agree that you are committing to a legally binding and irrevocable offer to purchase the Lot at any price up to and including your highest bid amount, including any maximum or proxy bid (as described on the Service (tarisio.com/buyers-sellers/buyers/bidding/)). By choosing the “Buy Now” bid option, you acknowledge and agree that you are committing to a legally binding and irrevocable offer to purchase the Lot at the “Buy Now” price. Subject to the “Reserves” section below, if you place the highest bid for a Lot as determined by Tarisio at the close of Auction (or if you choose the “Buy Now” bid option), your bid will be deemed accepted, and you will be obligated to purchase the Lot at the bid price (or the “Buy Now” price, as applicable) and pay any applicable fees and taxes as set forth in this Agreement. Failure to complete the transaction after acceptance of your bid (as required in Section 2.6) is a breach of this Agreement and is legally actionable by Tarisio. All bid retractions require the prior written consent of Tarisio. Tarisio may reject any bid at its sole discretion.
If you are a Seller or acting on behalf of a Seller, then you and any agents acting on your behalf are expressly prohibited from bidding on any Lots provided to Tarisio or the Auction by or on behalf of that Seller. If you or your agent bid on a Lot in violation of the foregoing and are the highest bidder for the Lot, you will pay us the Seller’s Commission described in the “Seller’s Commission and Payments” Section below, and the Buyer’s Premium (as defined in the “Auction Payments” Section below), and you or your agent shall not be entitled to any of the representations, warranties, or other rights or benefits provided by us to any Buyers under this Agreement.
2.3 Estimates
High and low pre-sale estimates for each Lot are set forth on the applicable Consignment Agreement. You agree that any such pre-sale estimate (or any other estimate, whether communicated by us to you or included in any Internet posting or printed or electronic auction catalogue or other publication) does not constitute (i) an appraisal of the actual or likely sale value of a Lot, (ii) a commitment as to the correct price (or price range) at which a Lot should be offered for sale, or (iii) a guarantee of the sale price of that Lot. You acknowledge and agree that we may, as experts in our field, revise estimates in our sole discretion in order to optimize the performance of the Lot at the Auction. Please note that we will not change the Reserve without the applicable Seller’s agreement.
2.4 Reserves
Lots to be sold through the Auction will consist of one (1) or more items. Some of the Lots are offered for sale subject to the “Reserve.” The “Reserve” is a confidential minimum valuation agreed upon by the Seller of such Lot and Tarisio under a Consignment Agreement, below which Tarisio is not obligated to sell such Lot. In no cases will the Reserve be greater than the low pre-sale estimate for the Lot provided on the Service. Tarisio may choose to implement any such Reserve by placing bids up to the amount of the Reserve. If bidding does not reach a Lot’s Reserve at the close of the Auction, Tarisio may, at its sole discretion, (i) sell the Lot to the highest bidder at his or her highest bid amount, even if the bid amount is below the applicable Reserve (without limiting Tarisio’s payment obligations in the Consignment Agreement), or (ii) refuse to sell the Lot. Tarisio may make downward adjustments to a Lot’s Reserve upon oral agreement with, or instruction from, the applicable Seller.
2.5 Viewing
Each Seller expressly acknowledges and agrees that, as part of our sales and marketing activities, we may hold pre-sale exhibitions and/or present Lots to potentially interested parties for viewing and, where applicable, trial. For such purposes, we may also transport Lots to locations outside our premises. We will make all Lots available for inspection during pre-sale exhibitions, the location and times of which will be determined at our complete discretion. The locations and times of pre-sale exhibitions may be listed on the Service at (tarisio.com/news-events/upcoming-events/). Anyone interested in bidding is strongly encouraged to visit the pre-auction exhibitions. You agree to exercise due care in handling any Lot at a viewing.
2.6 Buyer’s Auction Payments
The Buyer must make full payment of the purchase price of any Lot to Tarisio, plus any applicable sales taxes and all charges associated with shipping (including shipping insurance), and the Buyer’s Premium (hereinafter defined), no later than seven (7) working days after the close of bidding. Without further notification to the Buyer, and without limiting Tarisio’s rights under Section 2.11, Tarisio may place charges on the Buyer’s credit card supplied at the time of registration for the lesser of (i) the total billable amount (including purchase price, Buyer’s Premium, and associated charges), or (ii) 5,000 USD in US sales or 3,000 GBP in UK sales or 4,000 EUR in EU sales, if an equal or greater amount has not been paid to Tarisio within ten (10) working days after the close of bidding. For each Lot purchased, the Buyer shall pay to Tarisio a “Buyer’s Premium” equal to twenty percent (20%) of the total hammer price
Regardless of the location of the Auction, in the event that the Buyer placed both the first and last bids on the Lot (or the only bid, if only one (1) bid was placed, or if the “Buy Now” option was used), then the Buyer’s Premium shall be reduced by two percent (2%). For example, in such instance, for each Lot purchased the Buyer shall pay to Tarisio a Buyer’s Premium equal to eighteen percent (18%) of the total purchase price.
After the close of bidding, Tarisio will attempt to notify (i) each winning bidder and (ii) each Buyer having chosen the “Buy Now” bid option, via email or telephone using the contact information provided by the winning bidder/Buyer. You are responsible for providing Tarisio with accurate and current contact information. Payment will be accepted in any of the following methods: personal check, company check, cashier’s check, money order, wire transfer or credit card. Payment will be accepted in cash for sums of 10,000 USD or under in US sales, 10,000 EUR or under in EU sales, and 7,000 GBP or under in UK sales. Payments made by credit card will be assessed a processing fee of four percent (4%) of the charged amount (a separate administration charge of 4% for London and Berlin sales). All mailed payments and notices should be sent to Tarisio Auctions LLC, 244-250 West 54th, 11th Floor, New York, NY 10019 or in the case of UK sales, to Tarisio London Ltd, 86-87 Wimpole Street, London, W1G 9RL, or in the case of sales in Germany, to Tarisio Europe GmbH, Kurfürstendamm 28, 10719 Berlin. Payments may also be made in person at Tarisio’s offices, or, at Tarisio’s discretion, by telephone. No Lot will be released and no title to any Lot will be transferred to any Buyer until full payment is received by Tarisio. Tarisio reserves the right to hold Lots purchased by personal check or company check until such check has cleared in full. Tarisio may impose, and Buyer agrees to pay, a monthly interest charge of three percent (3%) of the total purchase price of any Lot (or the highest rate permitted by applicable law, whichever is less) not paid by the Buyer within fifteen (15) days after the date of sale.
2.7 Withdrawal
Tarisio may withdraw any Lot from any Auction at any time and for any reason we consider appropriate, if, for example, we have concerns regarding the provenance, title, authenticity, attribution, composition, age, condition, value or marketability of that Lot, or more generally, if we believe the sale of that Lot would be improper. With Tarisio’s approval, a Seller may withdraw any Lot from any Auction prior to the initial publication of the applicable sale and, in such event, the Seller shall pay us twenty five percent (25%) of the average of the high and low pre-sale estimates for such Lot that are set forth on the applicable Consignment Agreement, plus our charges for any repairs made to the Lot, if applicable, and an insurance fee equal to one and a half percent (1.5%) of the average of the high and low estimates for the Lot. If a Seller withdraws a Lot, that Lot will be returned to the Seller (in accordance with the “Unsold Lots” Section below) at the Seller’s expense and risk and following our receipt of all monies due to us in accordance with this Agreement.
2.8 Buyer’s Limited Remedy
With respect to any Lot which Tarisio has specifically identified in its most recently applicable Auction catalog as being made by a particular maker, and where Buyer has reason to believe that such Lot is not a genuine work of such maker, then Buyer may submit a notice of claim pursuant to the further terms of this paragraph. Buyer shall in such event, and within twenty (20) days of the close of bidding on such Lot, assure that Tarisio has received both the Lot (in the same condition as received by the Buyer) and Buyer’s written notice of Buyer’s reasons for contesting the authenticity of the Lot. Upon receipt of such a notice and the applicable Lot from the Buyer, and upon Buyer’s request therefor, Tarisio will supply a list of three (3) experts, as chosen by Tarisio in its sole discretion, whose opinions would be used to determine the authenticity of such Lot (“Acceptable Experts”). Subject to Buyer’s compliance with the terms and conditions of this paragraph, Tarisio shall in collaboration with its Acceptable Experts make a determination of the authenticity of such Lot, and, if Tarisio, in its sole discretion, determines that the Lot is not a genuine work of the maker specified in the applicable Auction catalog, Tarisio will fully refund the purchase price (including Buyer’s Premium) paid for the Lot by the Buyer. If Tarisio determines, in its sole discretion, not to refund the purchase price, the Lot will be returned to the Buyer at his or her sole risk and (pre-paid) expense. All packaging, handling, shipping and insurance shall be the sole responsibility of the Buyer. Tarisio shall have no responsibility for any loss or damage to any Lot incurred in shipment. For the avoidance of doubt, Buyer shall not have a right to contest the authenticity of a Lot where Tarisio has expressly qualified an attribution to a maker with terms such as “ascribed to”, “attributed to”, “school of”, or similar such terms referring to a maker; in addition, Buyer shall have no right to contest any statement by Tarisio with respect to the nationality of a maker or the country of origin of a Lot.
2.9 Shipping/Pickup for Buyers
Upon Tarisio’s receipt of full payment for a Lot from the Buyer, Tarisio will arrange for the packaging and shipping of the Lot in accordance with instructions provided by the Buyer with respect to shipping options Tarisio may propose (Tarisio also reserves the right not to ship a Lot for any reason). Where the Lot is not to be shipped to the Buyer, the Buyer shall arrange for the Lot to be picked up from Tarisio’s offices at 244-250 West 54th, 11th Floor, New York, NY 10019 (US sales) or Tarisio London Ltd, 86-87 Wimpole Street, London, W1G 9RL (UK sales) or Tarisio Europe GmbH, Kurfürstendamm 28, 10719 Berlin (Germany sales), after making full payment. Tarisio reserves the right to require, from the person picking up a Lot, appropriate identifying documentation and, where applicable, advance written authorization which Tarisio can reasonably confirm to be from the Buyer. UNDER NO CIRCUMSTANCE WILL TARISIO BE RESPONSIBLE FOR DAMAGE TO LOTS INCURRED DURING SHIPMENT TO BUYER.
2.10 Storage for Buyer
The Buyer agrees to pay a monthly storage fee of 1.5% of the purchase price of any Lot or portion of a Lot which has not been shipped to or picked up by the Buyer within fourteen (14) days after the close of the applicable Auction. Tarisio shall not be responsible for any loss or damage to property left on its premises for more than fourteen (14) days after the close of the Auction.
2.11 Bidder Default
If the highest bidder (or the Buyer pursuant to a Buy Now option) on a Lot does not pay Tarisio in full for such Lot in accordance with Section 2.6 of this Agreement (a “Defaulting Bidder”), Tarisio may attempt to sell such Lot to another purchaser, whether at a future auction or in a private sale, or Tarisio may choose to return the Lot to the seller. In the event of a new sale, the Defaulting Bidder shall remain responsible for, and shall pay to Tarisio, all deficiencies between the Defaulting Bidder’s purchase price and the new sale price received by Tarisio for such Lot, plus all “Damages” (as defined below). If Tarisio informs the Defaulting Bidder that the Lot is being returned to the Seller, the Defaulting Bidder shall in any event immediately pay to Tarisio the Damages. The term “Damages” shall be the sum of all legally enforceable damages resulting from the Defaulting Bidder’s default, including without limitation the Buyer’s Premium on the intended sale to the Defaulting Bidder, Tarisio’s costs and expenses in connection with the attempted sale (and if applicable, re-sale) of the Lot, or its return to the Seller, and Tarisio’s and the Seller’s respective legal fees and costs. Tarisio shall be entitled to immediate payment from the Defaulting Bidder, including through injunctive relief or any other form of specific performance or interim or equitable relief available in the jurisdictions where Defaulting Bidder resides or holds assets, of the amounts owed to Tarisio by the Defaulting Bidder.
2.12 Photographs and Reproductions
You (whether a Seller, Buyer, or otherwise) hereby authorize Tarisio to photograph, film, tape, digitally record, or otherwise create audio and video recordings, still images and/or textual descriptions, testimonials, and statements (which may include, without limitation, information concerning the provenance, authenticity, attribution, age, composition and/or condition of any Lots) relating to any Lots or other items offered or purchased by you through or in connection with any Auction (hereinafter the “Reproductions and Materials”), without compensation or further permission. You further authorize Tarisio, and its licensees, directors, officers, employees, contractors, representatives, successors and assigns (collectively, the “Associated Parties”) to edit, modify, adapt and change the Reproductions and Materials at their sole discretion, and to incorporate the Reproductions and Materials into print publications, electronic publications, software, video or sound recordings, broadcasts, programs, or any other media, whether now known or hereafter developed (“Publications”). You hereby authorize, for worldwide commercial and non-commercial purposes, Tarisio to use, reproduce, distribute, license to others, and otherwise exploit all intellectual property rights in and to the Reproductions and Materials and the Publications in any manner of media whatsoever now or hereafter known. You relinquish all right, title and interest you may have in any Reproductions and Materials or the Publications as modified or unmodified, and you hereby assign all right, title and interest you may have in any Reproductions and Materials or the Publications to Tarisio.
You further hereby irrevocably agree that you will not assert or maintain against Tarisio, or the Associated Parties any claim, action, suit or demand of any kind or nature, including, but not limited to, those grounded upon infringement, invasion of privacy, right to publicity, defamation, libel or slander in connection with the Reproductions and Materials or the Publications or the exercise of the rights granted herein. You represent and warrant that you control all of the necessary rights (or have obtained the required permissions) in order to grant the rights and releases contained herein and that you have the authority to grant such rights and releases, and that there is no third-party obligation that interferes or prevents you from granting the rights and releases specified herein. If you are a Seller, you further represent and warrant that there are no restrictions on our right to photograph any Lots you placed with our Service or create other Reproductions and Materials and to reproduce, publish, or distribute any Reproductions and Materials in any manner in connection with the performance of this Agreement.
2.13 Sellers’ Terms
By using the Service as a Seller, you expressly agree to the terms and conditions of these “Sellers’ Terms,” in addition to all other terms and conditions of the Consignment Agreement, with respect to all Lots that are subject to any Consignment Agreement entered into between you and Tarisio.
2.13.1 Representations & Ownership. You represent that as of the date of the Consignment Agreement and through to and including the date of sale by Us of each Lot, i) You are the uncontested, sole and exclusive direct and beneficial owner of such Lot, free and clear of all liens, encumbrances and other third-party rights (including without limitation those of governments or governmental or administrative agencies); no ownership rights in any Lot are being transferred to us pursuant to the Consignment Agreement; ownership rights remain vested in you until sold as contemplated by the Consignment Agreement; ii) You have the right to enter into this Agreement and give us possession of such Lot, and upon sale by us pursuant to this Agreement, good title and right to possession will pass to the purchaser, free of all liens, encumbrances and other third-party rights; iii) You will promptly provide us with documentary evidence and/or a formal opinion of recognized legal counsel as reasonably requested by us to verify your ownership of a Lot, your right to sell the Lot in accordance with this Agreement, and your compliance with applicable laws and regulations regarding such Lot; iv) You have informed us of all information of which you have been made aware regarding the provenance, authenticity, attribution, or condition of such Lot, or part thereof (and without limitation, you have delivered to us all original certificates of authenticity and condition reports regarding such Lot of which you are aware); and v) All of your descriptions of such Lot and statements of provenance, condition, authenticity or attribution, whether such descriptions are set forth on the front of the Consignment Agreement or are made elsewhere by you orally or in writing, are true and complete.
2.13.2 No Publicity. For as long as a Lot remains in our possession under this Agreement, you will not, without our written consent, issue any press releases, advertisements or other notices, through any media whatsoever, regarding the Lot or its sale.
2.13.3 Repairs to Lots. To ensure the Property is presented in optimal playing conditions you agree that we may, for a reasonable charge to you, make small repairs to the Property without your prior approval: i) If the Low Estimate is below 10,001 USD or 7,001 GBP or 8,001 EUR then we may charge you up to 200 USD or 150 GBP or 175 EUR for small repairs, ii) if the Low Estimate is above the amount specified in (i) but below 50,001 USD or 35,001 GBP or 40,001 EUR then we may charge you up to 600 USD or 400 GBP or 500 EUR for small repairs, or iii) if the Low Estimate is above the amount specified in (ii) but below 100,001 USD or 70,000 GBP or 80,000 EUR then we may charge you up to 1,000 USD or 700 GBP or 800 EUR for small repairs. Any repairs that exceed these charges will require your advance approval.
2.13.4. No Guarantees. You recognize and accept that we routinely and contemporaneously offer properties for sale, both through the Auction and privately, which could be considered competitive with one or more of your Lots, and we do not promise that any Lot will be effectively marketed or sold.
2.13.5 “Buy Now” Bid Option. We may, in our sole discretion, permit your Property to be made available to bidders with a “Buy Now” option, the price of which option shall be confirmed by written agreement between us.
2.13.6 Seller’s Commission and Payment. In the event your Lot is sold through the Service or otherwise by Tarisio, you agree to pay us the commission set forth in the applicable Consignment Agreement (“Seller’s Commission”). Where an Auction is designated “New York”, the Seller’s Commission shall be calculated and payable in United States Dollars (USD), and where an Auction is designated “London”, the Seller’s Commission shall be calculated and payable in Pound Sterling (GBP), and where the Auction is designated “Berlin” the Seller’s Commission shall be calculated and payable in Euro (EUR). The Seller’s Commission becomes due and payable to us on date of the sale of the Lot. We will deduct the Seller’s Commission and any other amounts due to us from the sale proceeds of such Lot at the same time as we remit payment to you in respect of the balance of the sale proceeds, and we will pay you the balance on or before the later of (i) thirty (30) days from the closing of the applicable Auction and (ii) the tenth (10th) day following our receipt of full payment from the Buyer. The Seller’s Commission and all other amounts payable under this Agreement are exclusive of any applicable sales or value added tax which shall be paid at the same time as payment of the Seller’s Commission or such other sums. You acknowledge that we may charge the Buyer of each Lot a Buyer’s Premium as specified in the “Buyer’s Auction Payments” Section above. We may, without further notice to you and without any additional cost to you, pay on our own behalf any third-party commissions that we may determine to be required in connection with the sale of any Lot. If a Buyer fails to pay us or forfeits a bid, we may choose (but we are not obliged) to (a) enforce payment by the Buyer, to (b) sell the Lot to the next highest bidder, or (c) cancel the sale. With respect to a Lot that thereby remains unsold, we may: (x) make a private sale of the Lot at a purchase price that is no less than its Reserve, if any; (y) continue to keep the Lot under this Agreement and offer it for sale at our next Auction; or (z) return the Lot to you at your expense and risk (provided that if we paid you a portion of the sales price of the defaulted or forfeited sale, you shall promptly return such proceeds to us prior to our returning the Lot to you) in accordance with the “Unsold Lots” Section below.
2.13.7 Insuring your property. We will insure each Lot under our general insurance for an amount equal to the average of the high and low pre-sale estimates for such Lot that are set forth on the applicable Consignment Agreement. We will insure each Lot until the earlier of (i) the date we receive payment in full for a sold Lot, or (b) the date an unsold Lot leaves our premises in accordance with the “Unsold Lots” Section below. Our general insurance is subject to standard exclusions contained in our policy, including, for example, fraud, intentional concealment, misrepresentation of material facts, contraband, government seizure, nuclear hazard, war and military action. Without limitation to the foregoing, we cannot accept any responsibility for damage caused by woodworm, changes in atmospheric conditions or acts of terrorism.
2.13.8 Unsold Lots. With respect to unsold Lots, you shall, within fourteen (14) days of any notice therefor from us, arrange for pickup at our premises (244-250 West 54th, 11th Floor, New York, NY 10019 for Lots consigned in the US, and 86-87 Wimpole Street, London, W1G 9RL for Lots consigned in the UK, and Kurfürstendamm 28, 10719 Berlin for Lots consigned in Germany) during our ordinary business hours, or you shall instruct us with shipping details; in either case within that fourteen (14) day period, you shall also pay us any sums owing to us pursuant to this Agreement. If you fail to arrange for pickup or instruct us with shipping details (together with payment of amounts owing to us) within such fourteen (14) day period, we shall, on written notice to you, be entitled to charge you a monthly storage fee of one and one-half percent (1.5%) of the average of the high and low pre-sale estimates for the Lot (or if higher, 50 USD or 30 GBP or 40 EUR per Lot per month) beyond such fourteen (14) day period. If any Lot remains uncollected beyond thirty (30) days from our notice as provided above, we may, on written notice to you, place the Lot in a third-party storage facility and/or offer the Lot for sale at auction (through us or any other seller) without regard to the Reserve, if any. Any amounts owing to us by you (including insurance and packing fees) shall be paid in full prior to us releasing a Lot for pickup or shipment. For Lots being picked up at our premises, you will bring appropriate identification or, as applicable, provide advance copies of any written instructions for a third party to retrieve a Lot. In no event will we be liable for any of your property damaged or lost in transit.
2.13.9 Security Interest and Lien. You grant to us a security interest in and lien upon each Lot and all proceeds with respect to each Lot to secure your performance of your obligations under this Agreement.
2.13.10 Government Restrictions. You acknowledge and agree that you alone are responsible for complying with any export, import, and other laws, rules, or regulations in connection with offering for sale, selling, purchasing, importing, or exporting any Lots in connection with the Service, and you will obtain any licenses necessary to sell, purchase, export, and import any items provided or purchased by you. As an exception to the foregoing, Tarisio shall handle any such compliance requirements, and obtaining necessary licenses, resulting from Tarisio’s decision to temporarily import and export a Lot for viewing or sale purposes outside the country in which the Lot was consigned to Tarisio. You will in any event pay any fees, duties and taxes related to all of the foregoing compliance and license requirements. Tarisio reserves the right not to ship endangered species materials abroad even if the items in question are over one hundred (100) years old unless a CITES exemption permit has been obtained. Tarisio also reserves the right to refuse to sell or ship any items (purchased or otherwise) if Tarisio believes, in its sole discretion, that selling or shipping such items would be in violation of any applicable laws, rules, or regulations.
3. The Cozio Archive
3.1 About
The Service includes certain subscription services that provide access to databases of historical, identification, sales, and pricing information relating to fine instruments (the “Cozio Archive”). All information contained in the Cozio Archive is provided “AS IS” and “AS AVAILABLE” and should be used only for personal, non-professional and non-commercial purposes. Tarisio makes no representations or warranties regarding the accuracy, reliability, completeness, legality, or appropriateness of any information contained within the Cozio Archive, and you rely on any such information at your own risk. You agree to hold Tarisio harmless from any loss or liability incurred in connection with your access to, use of, transmittal of, or reliance on any information contained within the Cozio Archive. If you believe any information contained within the Cozio Archive is inaccurate or incomplete, please email us at info@tarisio.com.
3.2 User Content
Some areas of the Service, such as the Cozio Archive, allow Users to submit content such as comments, questions, and other content or information (any such materials a User submits or otherwise makes available on the Service being “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to allow Tarisio and others to view, edit, and/or share your User Content in accordance with this Agreement. Tarisio has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service. By providing any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Tarisio a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and, unless you expressly object, your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service and Tarisio’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement.
You agree not to provide User Content that: (i) may create a risk of any other loss or damage to any person or property; (ii) may constitute or contribute to a crime or tort; (iii) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, obscene, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (iv) contains any information or content that is illegal; (v) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vi) contains any information or content that you know is not correct and current. You represent and warrant that any User Content that you provide to the Service and Tarisio’s use thereof does not and will not violate any law, rule, or regulation, or any third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined in the “Our Proprietary Rights” Section below), rights of privacy, or rights of publicity. You further represent and warrant that all your User Content and other information that you provide to us is truthful and accurate. Tarisio reserves the right, but is not obligated, to reject and/or remove any User Content that Tarisio believes, in its sole discretion, violates these provisions. Tarisio takes no responsibility and assumes no liability for any User Content that you or any other User or third party provides to the Service. You shall be solely responsible for your User Content and the consequences of providing it, and you agree that Tarisio is acting only as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that Tarisio shall not be liable for any damages you allege to incur as a result of User Content.
3.3 Fees
If you elect to use the Cozio Archive, you agree to the pricing and payment terms (tarisio.com/subscribe/), as we may update them from time to time. Tarisio may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
3.4 No Refunds
You may cancel your Cozio Archive account at any time; however, there are no refunds for cancellation. In the event that Tarisio suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.
3.5 Payment Information; Taxes
All payments through the Cozio Archive are processed using a third-party processor. You acknowledge that Tarisio is not liable for any breaches of credit card or debit card security or privacy by such third-party processor. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Cozio Archive must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Cozio Archive at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
4. Our Proprietary Rights
Except for your User Content, as between you and Tarisio, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the “Tarisio Content”), and all Intellectual Property Rights (as defined herein) related thereto, are the exclusive property of Tarisio and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Tarisio Content. Use of the Tarisio Content for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Tarisio under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Tarisio does not waive any rights to use similar or related ideas previously known to Tarisio, or developed by its employees, or obtained from sources other than you.
5. Privacy
We care about the privacy of our Users. You understand that by using the Service you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy (tarisio.com/privacy-policy/) and our Cookie Policy (tarisio.com/cookie-policy/), and to have your personally identifiable information collected, used, transferred to and processed in the United States, United Kingdom, and Germany.
6. Security
Tarisio cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. DMCA Notice
Since we respect artist and content owner rights, it is Tarisio’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Tarisio’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Service;
Information reasonably sufficient to permit Tarisio to contact you, such as your address, telephone number, and, e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Tarisio
Address: 244 West 54th, 11th Floor
New York, NY, 10019
Telephone: +1.212.307.7224
Fax: +1.212.202.4660
Email: info@tarisio.com
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Tarisio and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Tarisio’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Tarisio has adopted a policy of terminating access to the Service in appropriate circumstances, for example with respect to Users who are deemed to be repeat infringers. Tarisio may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. Third-Party Links
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Tarisio. Tarisio does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website from the Service, you do so at your own risk, and you understand that this Agreement and Tarisio’s Privacy Policy do not apply to your use of such sites. You expressly relieve Tarisio from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Tarisio shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
9. Indemnity
You agree to defend, indemnify and hold harmless Tarisio and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses (including lost commissions), liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation or alleged violation of any term of this Agreement, including without limitation your breach or alleged breach of any of the representations and warranties above or any of the terms and conditions of a Consignment Agreement you have entered into with Tarisio; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your User Content or any that is submitted via your account; (vi) your failure to comply with any import, export, or other laws or regulations in connection with any Lots purchased or provided by you, including without limitation any failure to pay any applicable fees or obtain any necessary licenses; (vii) any misrepresentations made by you in connection with any Lot provided by you; or (viii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
10. No Warranty
THE SERVICE (INCLUDING THE AUCTION SERVICES) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TARISIO OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, TARISIO, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT ANY CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
ALL LOTS ARE SOLD AT AUCTION “AS IS” AND, EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, TARISIO MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO ANY LOT, INCLUDING WITHOUT LIMITATION, REGARDING PROVENANCE, AUTHENTICITY, TITLE, ATTRIBUTION, CONDITION, VALUE, COMPOSITION, MARKETABILITY, OR COMPLIANCE WITH ANY LAWS OR REGULATIONS. EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT OR IN A SEPARATE WRITING BY US, WE EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY TO YOU, EXPRESS OR IMPLIED, AND YOU WAIVE ANY CLAIM YOU MIGHT OTHERWISE HAVE AGAINST US OR ANY OF OUR AFFILIATES, AGENTS OR SUBCONTRACTORS ACTING IN SUCH CAPACITIES, WITH RESPECT TO ANY STATEMENTS OR WRITINGS CONCERNING THE PROVENANCE, TITLE, AUTHENTICITY, ATTRIBUTION, COMPOSITION, AGE, CONDITION, VALUE, OR MARKETABILITY OF ANY LOT.
TARISIO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE TARISIO SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TARISIO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE EXCLUSION OF WARRANTIES SET FORTH ABOVE EXPRESSLY SUPERSEDES ANY WRITTEN OR ORAL STATEMENT MADE BY TARISIO AT ANY TIME (OTHER THAN ANY WRITTEN WARRANTY TARISIO MAY CHOOSE TO PROVIDE IN A SEPARATE WRITTEN AGREEMENT WITH A USER).
FOR LOTS SOLD IN BERLIN THE STATUTORY WARRANTY RIGHTS EXPIRE ONE (1) YEAR FROM THE STATUTORY BEGINNING OF LIMITATION. IF THE BUYER IS A CONSUMER AND THE LOT IS A NEWLY PRODUCED GOOD, THE STATUTORY WARRANTY PROVISIONS APPLY.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TARISIO, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE (INCLUDING THE AUCTION SERVICES). UNDER NO CIRCUMSTANCES WILL TARISIO BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, TARISIO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE OR THE PURCHASE OF ANY LOTS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR INFORMATION OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT AS EXPRESSLY PROVIDED IN THE “AUCTION TERMS” SECTION ABOVE, IN NO EVENT SHALL TARISIO, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO TARISIO HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE OR 100 USD, WHICHEVER IS GREATER. IN NO EVENT WILL TARISIO BE HELD LIABLE TO ANY PERSON FOR ANY LOT IN AN AMOUNT IN EXCESS OF THE PURCHASE PRICE ACTUALLY RECEIVED BY TARISIO FOR SUCH LOT.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, IN NO EVENT WILL TARISIO BE LIABLE FOR ANY ERRORS OR OMISSIONS WITH RESPECT TO ANY AUCTION, OR IN ANY CATALOG OR OTHER DESCRIPTIONS OF A LOT, OTHER THAN AS A RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE EVENT OF DAMAGE TO OR THEFT OR OTHER LOSS OF A LOT, OUR AGGREGATE LIABILITY SHALL NOT EXCEED THE NET AMOUNT OF INSURANCE PROCEEDS RECEIVED BY US ON ACCOUNT OF COVERAGE OF THE LOT MAINTAINED BY US, LESS THE COMMISSION AND ANY OTHER AMOUNTS THAT WOULD HAVE BEEN PAYABLE BY YOU TO US.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TARISIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
FOR LOTS SOLD IN BERLIN THE LIABILITY FOR injury to life, body or health shall be neither exCluded nor limited.
The Service is controlled and operated from facilities in the United States. Tarisio makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States England or the Federal Republic of Germany, as the case may be, with respect to any particular Auction.
12. Governing Law and Class Action/Jury Trial Waiver
12.1 Governing Law; Venue
This Agreement is governed by and shall be construed in accordance with the laws of the State of New York; provided, however, that in the event of any controversy or claim arising in connection with an Auction designated “London”, the laws of England and Wales shall be applicable; in the event of any controversy or claim arising in connection with an Auction designated “Berlin”, the laws of the Federal Republic of Germany shall be applicable. In the event of any controversy or claim arising out of or relating to this Agreement, or a breach thereof, the parties shall first consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. In the unlikely event that Tarisio has not been able to resolve a dispute it has with you after sixty (60) days, the parties agree that all disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York or, in the event of matters regarding Auctions designated “London”, the jurisdiction of the courts of London, England, or in the event of matters regarding Auctions designated “Berlin” and only if the other party is not a consumer, the jurisdiction of the courts in Berlin, Federal Republic of Germany, and the parties consent to the personal and exclusive jurisdiction of these courts. Notwithstanding anything to the contrary, nothing in this Section shall be deemed as preventing Tarisio from seeking injunctive or other equitable relief from the courts without engaging in informal dispute resolution as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights other proprietary rights, or any other rights of Tarisio as contemplated or referenced in this Agreement.
12.2 Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TARISIO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
13. General
13.1 Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Tarisio without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2 Force Majeure
No party shall be responsible to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: non-availability or failure of any third-party service, act of God, governmental act, war, fire, flood, explosion, communications or failure of the Internet or civil commotion.
13.3 Notification Procedures and Changes to the Agreement
Tarisio may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Tarisio in our sole discretion. Tarisio reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Tarisio is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Tarisio may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the bottom of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use or access (or continue to access) the Service.
13.4 Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Tarisio in connection with the Service, including without limitation any applicable Consignment Agreements, shall constitute the entire agreement between you and Tarisio concerning the Service. In the event of a conflict between any term of this Agreement and any term of a separate written agreement between you and Tarisio (including a Consignment Agreement), the terms of this Agreement shall govern. If any provision of this Agreement (or portion thereof) is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement (or any other portions of such provisions), which shall remain in full force and effect.
13.5 No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Tarisio’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
13.6 Contact
Please contact us (tarisio.com/contact-us/) with any questions regarding this Agreement.
This Agreement was last modified on September 13, 2021.