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Terms and Conditions

IMPORTANT NOTICE: The value of the artworks we handle is high. If we were to insure all those artworks, or to insure the liabilities we might otherwise have for those artworks, our charges would increase. Therefore: (i) we do not insure Customers’ goods unless specifically agreed with them in writing; and (ii) we accept only very limited liability to our Customers. We therefore require our Customers to warrant that they have fully insured their goods and that we are noted as a Co-Assured. If you do not already have adequate insurance of the type we require, we can help arrange insurance. Any Customer may request us to vary these Conditions (including increasing the scope of our liability), although it may be necessary for us to levy a surcharge if we do so.

If you are a Consumer (as defined below), some of the provisions in these Conditions do not apply to you, and some terms apply that give you additional rights. The Conditions make clear where this is the case. In particular please read Condition 14, which sets out some important additional rights that apply for Consumers.

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  1. DEFINITIONS

In these Standard Trading Conditions (“these Conditions”): 

“Consignee”

means any company or other entity to whom we agree with you to deliver the Goods as part of the Services.

“Consumer”

has the same meaning as ‘consumer’ in the Consumer Rights Act 2015, being an individual acting for purposes that are wholly or mainly outside that individual’s trade, business craft or profession.

“Contract”

means the Contract which we enter into with you for the provision of the Services. The formation of the Contract is deemed to be concluded (i) by your acceptance of our Estimate, or (ii) if no Estimate is issued, at the time you instruct us to provide the services we have offered to provide. 

“Estimate”

means our estimate setting out the scope of the Services, the price(s) and any special terms we offer for the performance of the Services. All Estimates are deemed to include these Conditions.

 

 

“Goods” means the property or goods, including all individual items or components thereof (“Individual Items”), and including packaging if provided by you, in respect of which we are to provide the Services.

“Owner(s)” means the person or persons who is / are the legal and / or beneficial owner(s) of the Goods. 

“Services” means all services we agree to provide to you, including packing, handling, warehousing, storage, transportation and import or export services.

“Site” means the place of collection or delivery.

“we”/“us” means Onlyart Ltd, a company incorporated in England with company registration number 13673022, whose registered address is Greyholme, Ballam Road, Westby, Lancashire, PR4 3PN.

“you” means the individual, company or entity who contracts for the services.

 

 2. BASIS OF THE CONTRACT

(a) The Services are provided in accordance with these Conditions which are accepted by you. If you wish us to vary any provisions of these Conditions, you must make a request to us in accordance with Condition 10. If you enter into more than one Contract with us, each such Contract shall be subject to these Conditions unless otherwise expressly agreed by us in writing.

 (b) If you are not the Owner(s):

  1. you warrant and represent that you are acting as the agent of the Owner(s), and are authorised to enter into the Contract on behalf of the Owner(s);

  2. you enter into the Contract on your own behalf and as agent on behalf of the Owner(s);

  3. any warranties or representations expressed to be given by you in the Contract are given by you on your own behalf and as agent on behalf of the Owner(s);

  4. you and the Owner(s) shall be jointly and severally liable for the warranties and representations you give and for the performance of your obligations under the Contract;

  5. if you are not a Consumer then any provisions of these Conditions that are expressed to apply if you are not a Consumer shall apply to you, regardless of whether the Owner(s) is/are a Consumer.

  1. These Conditions and the Estimate contain the entire agreement between you and us in relation to the provision of the Services and supersede any earlier conditions and/or any representations by us concerning the provision of the Services. These Conditions override any terms stipulated by anyone inviting us to provide any Estimate or any services.

  2. You warrant that you have not entered into the Contract in reliance on, and shall have no remedy in respect of, any representation or statement that is not expressly set out in these Conditions or the Estimate.

  3. Except where expressly provided by Condition 3(a), nothing in these Conditions shall confer on any third party any benefit or the right to enforce any term of these Conditions. Your rights and our rights to vary of rescind the Contract are not subject to any third party rights.

  4. In no circumstances are we to be deemed to be a common carrier.

  5. Any Estimate is based on information supplied by you and on prevailing rates of expenses such as freight charges, exchange rates, tax rates and administration costs. We reserve the right at any time prior to entering into the Contract to revise our Estimate, prices, charges or rates or withdraw the Estimate.

  6. Where no Estimate is given, or you ask us to provide Services beyond the scope of our Estimate, our charges will be those for comparable services carried out by us at the time the Services are provided and we reserve the right at any time to vary those charges.

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3. OUR PERFORMANCE OF SERVICES

  1. We reserve a reasonable discretion as to the means, facilities, routes and procedures by which we perform the Services. If you stipulate the means, facilities, routes or procedures to be followed and we agree your stipulation, you will be liable for any loss or damage or other consequences resulting from our compliance or attempts to comply with such stipulations.

  2. You must ensure that any information you provide to us in connection with the Services is accurate and that you promptly provide us with any information that we reasonably request in connection with the Services.

  3. We may refuse to deliver up the Goods to any person unless you have authorised us in writing to deliver the Goods up to that person and provided to us and all sums due to us have been paid. 

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4. ART TRANSPORT

  1. This Condition 4 applies if the Services include delivery or collection.

  2. We shall use reasonable endeavours to achieve any timescales specified in the Estimate. For the purposes of the Contract, collection takes place when the Goods are placed at our disposal at the place of collection, and delivery takes place when we place the Goods at the disposal of you or your Consignee at the place of delivery.

  3. You must ensure that:

    1. the Goods and the Site match any description that you have provided to us, including (without limitation) as regards their dimensions; (ii) we are provided with access to the Site at the relevant times;

    2. the Site is in a fit condition and able to accommodate the Goods and any equipment and personnel that may reasonably be required to load or unload the Goods.

    3. in the case of collection, unless packing is agreed as part of the Services the Goods are packed and ready for collection at the specified time;

    4. in the case of a delivery, that the person authorised by you in writing to take delivery is present at the place of delivery at the specified time;

  4. You may cancel or postpone a delivery or collection by notifying us using the contact details we provide when we confirm your order has been accepted. If you notify us less than 3 days before the agreed date for those services you shall pay us a cancellation fee to cover any costs. You shall pay this fee no later than 7 days after the date of our invoice. If you are a consumer this does not affect your right to cancel under clause 15.

  5. If you do not fulfil your obligations under Condition 4(c) and as a result we are unable to provide the Services within the relevant timescales, we may store the Goods (if we already hold them) and use reasonable endeavours to agree an alternative time for completing the Services. If we do, we may (at our discretion) charge

    1. a cancellation fee in accordance with clause 4(d) above,

    2. a storage fee calculated at our then current weekly rate for each week or part of a week during which we store the Goods and (iii) a fee for completing the Services at the alternative time we agree with you. These fees will be calculated at our then current rates. If we charge these fees you shall pay them no later than 7 days after the date of our invoice. 

  6. Unless we expressly agree to assume responsibility for health and safety at the Site, you agree to ensure that the Site is (so far as reasonably practicable) free from risks to the health and safety of our staff.

                   

 

5. INSURANCE OF THE GOODS

  1. We are not responsible for insuring the Goods. 

  2. If we do not agree with you that we will arrange insurance for the Goods;

    1. you must ensure that the Goods are insured with a reputable insurer against any loss or damage occurring to the Goods whilst in our custody or control (including loss or damage arising out of or in connection with our negligence);

    2. you must ensure that our interest as co-assured is noted in the insurance policy; 

    3. you must not cause the insurance policy to be invalidated or the amount of any insurance payment to be reduced.

  3. If we expressly agree to arrange insurance for the Goods then: 

    1. That insurance will be subject to the exceptions and conditions of the policies of the insurers accepting the risk; 

    2. Unless otherwise agreed in writing, we shall not be under any obligation to effect a separate insurance on the Goods, but may declare them on any open or general policy held by us; 

    3. Insurance of the Goods arranged by us may note our interest as a co-assured;

    4. In arranging any insurance we act solely as your agent and will use our reasonable endeavours to arrange such insurance; 

    5. Any insurance effected will be based on information (including as to the value of the Goods) supplied by or on behalf of you. 

We accept no liability for any consequences of inaccurate or incomplete information supplied to us.

  1. Where we agree to arrange insurance for the Goods our fees for doing so will be set out in our Estimate. 

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6. YOUR WARRANTIES

  1. At the time of concluding the Contract you warrant as follows, and you warrant further that you will advise of a change in circumstances which affects your ability to provide these warranties or the validity of these warranties: 

    1. You are either the lawful owner of the Goods or are acting on behalf of the lawful owner of the Goods and are authorised to bind the lawful owner to these conditions; 

    2. The Goods including all individual items have been fully and accurately listed by you and you maintain and update that list at all times and will provide us with that list on request; 

    3. Full and accurate written disclosure and instructions have been given to us of all matters relating to the Goods which might reasonably influence our decision as to whether and how we provide the Services;   

    4. Unless packing is agreed as part of the Services, the Goods are properly and securely packed, labelled and addressed and able to withstand the normal incidents of the Services;

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7. PAYMENT, LIEN AND SALE 

  1. We reserve the right to require payment in advance of the provision of any Services. Unless otherwise agreed in writing by us, you agree to pay our charges within 7 days of the date of any invoice. 

  2. You understand that where the Services consist only of transportation, our charges do not include the costs of packing or storage.      

 

 

8. OUR LIABILITY

  1. You may request that we vary these Conditions.

  2. This Condition 9 sets out the extent of our liability to you and (if you are not the Owner(s)) to the Owner(s) arising out of or in connection with the Contract, whether such liability arises in tort (including negligence and misrepresentation), contract or in any other way.    

  3. We shall not be liable for any loss of profits, business interruption, loss of contracts, or loss of revenue, or any indirect or consequential loss of any kind whatsoever and however arising.

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  1. You agree that in no circumstances shall we be liable for any loss, damage or delay arising from: 

  2. Act of God, flood or other adverse weather conditions; 

    1. War whether declared or not, insurrection, civil disturbances, sabotage or terrorism;   

    2. Theft (unless involving complicity by ourselves or our servant acting in the course of employment); 

    3. Fire, whether started deliberately or accidentally.

 

  1. If we do become liable to pay compensation or damages, whether in contract or tort (including negligence or breach of statutory duty), and whether under the provisions of these Conditions or howsoever, in respect of any loss or damage arising from or in connection with this Contract and/or the Services (including loss of or damage to the Goods, losses arising from any non-delivery, mis-delivery, or delay or any other form of loss or damage), and such compensation or damages are calculable by reference to the value of the Goods, such value shall not exceed the market value of the Goods at the place and at the time we received them.

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9. NOTIFYING US OF A CLAIM

  1. This Condition 9 does not apply if you are a Consumer.

  2. In any event, any claim by you or the owner of the Goods against us must be made in writing and notified to us within 14 calendar days of: 

    1. the date on which the Goods were delivered or ought to have been delivered or, 

    2. if the date of delivery is not yet due the date on which you or your agent first become aware of the event or occurrence alleged to give rise to any cause of action. Any claim not so notified shall be deemed to be waived and absolutely barred. 

  3. Without prejudice to the application of any other Condition, we shall in any event be discharged of all liabilities, however they arise, unless proceedings are brought in the English Courts within 12 months from the later of:

    1. the date of the event or occurrence alleged to give rise to any cause of action, and 

    2. the date, on which you (including your servants or agent) first become aware or ought to have become aware of the event in question.

  4. Nothing in this Condition shall extend any period of limitation provided by law.

                   

10. VARIATION OF THESE TERMS

  1. The provisions of Condition 8 contain important exclusions and limitations of our liability to you. These are fundamental to our business, but you may request us to agree to vary these Conditions and/or to waive or increase the exclusions or limitations of liability provided by these Conditions. 

  2. Any request made in accordance with Condition 10(a) must be made to us in writing and agreed by us prior to the formation of the Contract, failing which there shall be no variation. Upon receipt of such a request, we will have an absolute discretion as to whether to agree and if so, upon what terms and at what additional price. These Conditions can only be waived or varied upon the written confirmation by one of our Company Directors, making express reference to this Condition.

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11. INDEMNITY

  1. If you are not a Consumer you agree to indemnify and hold us harmless against all loss, damage, costs (including legal costs) and claims (including third party claims) that we may incur arising out of or in connection with any breach by you or your servants or agents of your warranties in these terms and/or arising out of or in connection with our compliance with your instructions. This indemnity is without prejudice to any other rights we may have. 

  2. If you are not a Consumer then, subject to Condition 11(a), you agree to indemnify us against all loss, damage, costs (including legal costs) in excess of £1000 in respect of any individual item or £2000 in aggregate, which we may incur arising out or in connection with any claims or demands made by the Owner(s) (if you are not the Owner(s) or any third party in relation to the Goods or the Services agreed by us under these Conditions, including any associated costs to us.

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12. NOTICES

  1. Any notice mentioned in these Conditions shall be deemed to be duly served two days after the date sent to the appropriate address if posted, and on the same day if transmitted by fax or e-mail.

  2. The appropriate address for any notice served by us on you is the last address provided by you in writing. We accept no responsibility for the consequences of failure by you to update us, in writing, of your contact details.

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13. VALIDITY AND SEVERANCE

(a) If any of these Conditions is held to be illegal or unenforceable, in whole or in part, under any enactment or rule or law, then that provision shall to the extent necessary and insofar as permitted by law: 

  1. be deemed not to form part of these Conditions (or part of any relevant Contract); and 

  2. be deemed to be replaced by such provision as is valid and enforceable and which is as close as permissible to the invalid or unenforceable provision. The validity and enforceability of the remainder of these Conditions shall not be affected.

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14. ADDITIONAL RIGHTS FOR CONSUMERS

  1. This Condition 14 applies only if you are a Consumer. If there is any conflict between this Condition 14 and the rest of these Conditions, this Condition 14 takes precedence.

  2. You may cancel the Contract by giving us notice of cancellation within the seven days following the date on which we confirm that we will provide the services (the “Cancellation Period”). To exercise your right to cancel, you must inform us of your decision to cancel this contract by a clear statement (eg a letter sent by post, fax or email). You can use the following model cancellation form set out below, but it is not obligatory:

 

To Onlyart Ltd, Greyholme, Ballam Road, Westby, Lancashire, PR4 3PN or jonny@only-art.co.uk: 

I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/the supply of the following service [*],  Ordered on [*]/received on [*], 

Name of consumer(s), 

Address of consumer(s), 

Signature of consumer(s) (only if this form is notified on paper),  Date  [*] Delete as appropriate

 

  1. To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.

  2. Subject to Condition 14(e), if you cancel the Contract in accordance with this Condition 14 we will reimburse you any payments we have received from you under the Contract.

  3. If you ask us to begin performing the Services during the Cancellation Period and you then notify us during the Cancellation Period that you wish to cancel the Contract you will be obliged to pay us an amount that is proportionate (based on the total price for the Contract) to the amount of the Services that we have supplied at the time you notify us of your wish to cancel. If you ask us to begin performing the Services during the Cancellation Period you will lose your right to cancel once we have completed performing the Services and will be eligible for the full amount in estimate. 

15. LAW AND JURISDICTION

(a) The Contract and any disputes or claims (including non-contractual claims connected with the Contract) shall be governed by English law, and any disputes arising in connection with the Contract and/or the Services will be submitted to the exclusive jurisdiction of the English Courts.

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