Terms of Purchase

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The Agora Culture

Terms of Purchase

EFFECTIVE DATE: April 21, 2014

 

The following Terms of Purchase (this “Agreement”) governs the relationship between The Agora Culture LLC

(the “Company” or “we” or “our” or “us”) and buyers and sellers with respect to the works of art and

other property exhibited and offered for sale on the theagoraculture.com website [and related mobile

application] (collectively, the “Site”). By purchasing any property or otherwise participating in any sale on

the Site, you accept and agree to be bound by this Agreement. Please read this Agreement carefully

before participating in any sale.

 

Basic Terms

 

Unless specifically stated otherwise, all items offered for sale and sold on the Site are offered and sold

directly from the seller to the buyer, and we are not a party to any sale. Except for the limited purpose of

receiving payments, we are not the agent of any seller and have no agency authority for any other

purpose, and we are not the agent of any buyer for any purpose. Sellers using the Site are separate

individuals and entities from the Company and may have their own terms and conditions that apply to

the property they offer for sale. If a seller has additional terms and conditions of sale, such terms and

conditions will be communicated to a purchaser before any purchase, and all prospective buyers should

carefully review any such terms and conditions prior to any purchase. If there is a conflict between any

term or condition in this Agreement and any of the seller’s terms or conditions posted on the Site, then

the seller’s applicable term or condition will apply to the extent of the conflict. However, in no event will

any of the seller’s terms or conditions constitute any representation, warranty or assumption of liability of

any kind by us with respect to any property.

 

Withdrawal

 

We and the seller reserve the right to withdraw any property from the Site at any time and will have no

liability whatsoever for such withdrawal.

 

Purchases

 

Each buyer that places an order to purchase any item on the Site is required to complete the transaction

subject to this Agreement. All purchases made on the Site are binding on the buyer unless the item is

damaged and the buyer notifies the seller of such damage within 10 days of its receipt of the item

purchased. Except as specifically otherwise provided in this Agreement or if specifically otherwise

agreed by the seller, all purchases made on the Site are final sale.

 

Company Sales

 

From time to time, the Company itself may sell property on the Site. If the Company is the seller of any

item, we will be identified as the seller on the Site and in the buyer’s order confirmation, in which case

we will be responsible for the limited warranty of authorship provided by the seller in the paragraph

below titled “Limited Warranty of Seller” below. In all other cases, whether online purchase, auction sale

or otherwise, the Company is not the seller and we will have none of the seller’s obligations or liability

under this Agreement.]

 

Payment and Passing of Title

 

Subject to all applicable terms and conditions of this Agreement, upon the confirmation of any purchase,

the sale contract between the buyer and seller is concluded and the buyer must pay the total amount

due (comprising the purchase price, any applicable taxes, any and all shipping, handling and packing

fees and costs, and all other applicable charges) in good cleared funds at the time purchase. All funds

will be paid to the Company and will be held in escrow pursuant to the <Escrow Terms>. No payment

will be deemed made, and seller will not be required to ship any item, until we receive the total amount

due from the buyer in good cleared funds, including for credit card purchases. All payments must be

made in U.S. dollars unless otherwise agreed in writing. The buyer may pay by check, wire transfer,

credit card or PayPal, or, subject to our sole discretion, by ACH, and we are not obligated to accept

payment by any other means. ACH and credit card purchases are limited to U.S. $75,000 per purchase

unless otherwise permitted on the Site. We accept American Express, Visa, MasterCard or Discover

only. We may use third party payment processors to process any payment. If any credit card payment is

not approved, the buyer will remain personally liable for the total amount due. The buyer agrees to notify

us directly of any claims or issues regarding any payments made to us by credit card or any other

means. Title to the property will pass to the buyer on the 10th day after its receipt of the item purchased,

unless, prior to such time, the buyer has notified the seller and the Company in writing that the item is

damaged. In the event the buyer sends such a notice, the funds held by the Company will be

maintained in accordance with the Escrow Terms and title to the item purchased will remain with the

seller until the issue of damage has been resolved. If payment pursuant to the Escrow Terms is made to

the seller, then title to the item purchased shall pass to the buyer of such item immediately upon seller’s

receipt of such funds. If payment pursuant to the Escrow Terms is made to the buyer, then title to that

item shall remain with the seller and buyer will be obligated to ship the item back to the seller, within [2]

days after its receipt of such payment. The buyer consents to our paying commissions out of amounts

received from the buyer to third parties referring us clients or property.

 

Taxes

 

Unless exempt by law, the buyer is required to pay any and all sales, use, GST, VAT or any other taxes

applicable to the buyer’s purchases, including, for international purchases, any applicable customs

charges, duties and tariffs. We are required to collect sales tax for property delivered in the

Commonwealth of Virginia. The seller may also be required to collect sales, use, GST, VAT or any other

taxes as applicable to the transaction.

 

Shipping and Handling

 

Shipping and handling services, including insurance, will be procured by the Company for the seller.

The buyer is required to pay all shipping, handling and packing fees and costs for the purchased items

The seller will bear full risk and responsibility for the property until physical possession of the property is

transferred to the buyer or to the buyer’s agent or carrier, at which time full risk of loss or damage to the

property will shift to the buyer. We will not be responsible or liable for the acts or omissions of the seller

or any third party handler, packer or carrier procured by us for the benefit of the seller in the shipping,

handling or packing of any items.

 

Pricing

 

We cannot guarantee that property listed for sale on the Site will always be listed with the correct price,

and we reserve the right in our sole discretion to cancel any order where the item has been listed with an

incorrect price. If the correct price of an item purchased on the Site is higher than its listed price, we will,

at our discretion, either contact the buyer to ask if they wish to purchase the item at the correct price or

cancel the order and notify the buyer of such cancellation. If your order is cancelled under such

circumstances, you will be refunded for any amounts that you have already paid for the applicable item

and its delivery to you, if any, and you agree that we and the seller will otherwise have no liability

whatsoever for any such cancellations or errors on the Site.

 

Availability

 

We cannot guarantee that property listed for sale on the Site will always be available, and we cannot

confirm the availability of any item until you order. If we are notified by the seller or otherwise become

aware that an item purchased on the Site is actually no longer available, we will cancel the order and

notify the buyer of such cancellation. If your order is cancelled under such circumstances, you will be

refunded for any amounts that you have already paid for the applicable item and its delivery to you, if

any, and you agree that we and the seller will otherwise have no liability whatsoever for any such

cancellations or errors on the Site. You agree that all purchases made on the Site are subject to

availability.

 

Export, Import and Other Licenses

 

Prospective buyers are advised that some countries may prohibit or else require a license or permit for

the export or import of some property, including but not limited to property containing material from

endangered or other protected plant or animal species. It is the buyer’s responsibility to determine and

obtain any necessary export or import licenses and other permits for purchased items. Unless otherwise

agreed by us and the seller in writing, a delay or failure in obtaining any required license or permit will not

justify the cancellation of any sale or any delay in paying the total amount due for any purchased

property to the buyer. None of the seller, the Company or any of our officers, owners, directors,

consultants, agents or employees will be responsible for any loss resulting from the confiscation of a

shipment of purchased property to any state or foreign country or the risk that any government or public

authority may restrict the transportation of purchased property.

 

Disclaimer of Warranties

 

EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP PROVIDED BY THE SELLER THE SECTION

BELOW TITLED “LIMITED WARRANTY OF SELLER,” ALL PROPERTY IS SOLD “AS IS” WITHOUT ANY

EXPRESS OR IMPLIED WARRANTIES, AND NONE OF THE SELLER, THE COMPANY OR ANY OF OUR

OFFICERS, OWNERS, DIRECTORS, CONSULTANTS, AGENTS OR EMPLOYEES MAKES ANY

REPRESENTATIONS OR WARRANTIES OR ASSUMES ANY LIABILITY OF ANY KIND WITH REGARD

TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, SIZE,

QUALITY, CONDITION, ATTRIBUTION, AUTHENTICITY, RARITY, IMPORTANCE, MEDIUM,

PROVENANCE, EXHIBITION HISTORY, LITERATURE OR HISTORICAL RELEVANCE OF ANY

PROPERTY AND NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE ON

THE SITE, IN A BILL OF SALE, AN ADVERTISEMENT, ANY OTHER SUPPLEMENTAL MATERIALS OR

ELSEWHERE, WILL BE DEEMED SUCH A REPRESENTATION, WARRANTY OR ASSUMPTION OF

LIABILITY. ALL STATEMENTS MADE BY US OR ANY OF OUR REPRESENTATIVES ORALLY OR IN

WRITING ON THE SITE OR ELSEWHERE REGARDING ANY PROPERTY ARE STATEMENTS OF

OPINION AND ARE NOT TO BE RELIED ON AS STATEMENTS OF FACT. WE AND THE SELLER MAKE

NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE BUYER WILL ACQUIRE ANY

COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN ANY PROPERTY SOLD OR

WHETHER ANY ARTWORK SOLD IS SUBJECT TO ANY ARTIST’S MORAL RIGHTS OR RESIDUAL

RIGHTS. WITH RESPECT TO PROPERTY AVAILABLE FOR BIDDING, ANY ESTIMATE OF THE SELLING

PRICE SHOULD NOT BE RELIED ON AS A STATEMENT THAT THIS IS THE PRICE AT WHICH THE

ITEM WILL SELL OR ITS VALUE FOR ANY OTHER PURPOSE. WE AND, EXCEPT AS PROVIDED IN

SECTION 15 BELOW, THE SELLER, WILL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS

ON THE SITE OR IN ANY SUPPLEMENTAL MATERIALS.

 

Limited Warranty of Seller

 

Authorship. The seller warrants for a period of five (5) years from the sale date that if the property sold by

the seller is described without qualification at the sale date in the property listing on the Site in BOLD or

UPPER CASE type to be the work of a named authorship, then the property is authentic and is not a

forgery. This warranty is subject to the following terms and conditions: (i) it does not apply to property

whose description on the Site corresponded with the generally accepted opinion of scholars or experts

at the sale date or fairly indicated that there was a conflict of opinions; (ii) it does not apply to property

whose description on the Site at the sale date is proved inaccurate by means of a scientific process not

generally accepted for use until after the sale date or a process which at the sale date was unreasonably

expensive or impractical or likely to have caused damage to the property; (iii) the benefits of this

warranty are not transferable and will apply only to the original buyer, and not to the buyer’s successors

or assigns or any other party; and (iv) “authorship” means only the creator of the property or the period,

culture, source or origin of the property, as the case may be, as described at the sale date in the

property listing on the Site in BOLD or UPPER CASE type.

 

Cancellation and Refund. The seller agrees to cancel the sale and refund the purchase price of the

property to the buyer subject to the following conditions: (i) the buyer must notify the seller in writing

within ninety (90) calendar days after the buyer first receives any information leading to the belief that the

seller’s limited warranty of authorship has been breached, in any case within five (5) years after the

original sale date, and must provide such information to the seller; (ii) the buyer must have remained the

owner of the property without disposing of any interest in it to any third party; and (iii) the buyer must

return the property to the seller in the same condition it was in at the original sale date. The seller

reserves the right, as a condition to cancelling any sale under the warranty, to require that the buyer

obtain, at the buyer’s expense, the written opinions of two independent and recognized experts in the

field mutually acceptable to the buyer and seller. The seller will not be bound by any expert reports

produced by the buyer and reserves the right to obtain additional expert opinions at the seller’s own

expense. The seller has the discretion, but no obligation, to waive any of the above requirements.

Exclusive Remedy. The buyer expressly acknowledges and agrees that cancellation of the sale and

refund of the purchase price subject to the above terms and conditions will be the buyer’s sole and

exclusive remedy, in place of any other remedy or recourse that might be available as a matter of law or

in equity. None of the seller, the Company or any of our officers, owners, directors, consultants, agents

or employees will be liable to the buyer for any special, incidental or consequential damages, including,

without limitation, loss of profits or interest.

 

No Warranty by the Company. Except for property sold by the Company itself, we and our officers,

owners, directors, consultants, agents and employees make no representations or warranties of any kind

with respect to any property and will not be responsible or liable for the limited warranty of authorship

provided by the seller.

 

Limitation of Our Liability

 

All buyers and sellers that use the Site expressly agree: (i) to hold the Company and our officers, owners,

directors, consultants, agents and employees completely harmless from any dispute regarding any

property offered or sold on the Site; and (ii) that in no event will the Company or any of our officers,

owners, directors, consultants, agents or employees have any liability whatsoever with regard to the

listing, offer or sale of any property on the Site; except that: (a) our liability to the seller may vary as

otherwise provided in a separate written agreement between us and the seller; and (b) with respect to

property sold by the Company itself, our liability to the buyer will be limited to the remedy expressly

provided under the Section above titles “Limited Warranty of Seller”.

 

Law and Jurisdiction

 

This Agreement and the rights and obligations of the parties under this Agreement will be governed by

and construed and enforced in accordance with the laws of the [Commonwealth of Virginia], U.S.A.,

excluding any conflicts of laws principles. All buyers and sellers that use the Site agree to submit to the

exclusive jurisdiction of the state courts of, and the federal courts sitting in, Fairfax County, Virginia,

U.S.A. to resolve any claim or dispute arising out of or related to this Agreement or any sale conducted

in whole or in part on the Site. The United Nations Convention on Contracts for the International Sale of

Goods will not in any way apply to this Agreement or any sale conducted in whole or in part on the Site.

 

Changes to this Agreement

 

We reserve the right to change, modify, add or remove any part of this Agreement, at any time and in our

sole discretion, by posting the updated Agreement on the Site. Any changes to this Agreement will be

effective immediately when posted, and all prospective buyers and sellers should review this Agreement

carefully before participating in any sale. Changes to this Agreement will not apply to any transaction,

claim or dispute that arose before such changes became effective, all of which will remain subject to the

terms and conditions of this Agreement in effect at the time that such transaction, claim or dispute

arose. Please save and/or print a copy of this Agreement for your records.

 

General

 

This Agreement, together with any other applicable terms, conditions and information made available on

the Site, constitutes all of the terms and conditions on which you may purchase property on the Site. It is

your responsibility to carefully review the complete property listing on the Site, before participating in

any sale. If any part of this Agreement is found by a court of competent jurisdiction to be invalid or

unenforceable for any reason, that part will be limited or removed to the minimum extent necessary, and

this Agreement will otherwise remain in full force and effect. Our delay or failure to exercise or enforce

any right or provision of this Agreement will not be deemed a waiver of that or any other right or

provision of this Agreement. This Agreement is binding on your successors and assigns, but you may

not assign this Agreement without prior written consent from us and the seller. This Agreement will inure

to the benefit of our successors and assigns. The paragraph and section titles in this Agreement are for

convenience only and have no legal or contractual effect.

 

Contacting the Company

 

If you have any questions or inquiries about these Terms of Purchase or your use of the Site, please

email us at support@theagoraculture.com, or write us at 8300 Greensboro Dr. Suite 800, McLean, VA 22102

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