Last Updated: October 27 2020
Introduction and Agreement
About Greenhouse Auctions
The Company, through the Service, provides an online community and auction venue for the listing and auction of artwork and other items for sale, which include, among others, Users who submit artwork to be listed for sale or auction as a seller (in such capacity, a “Seller”) and Users interested in bidding on and/or purchasing, or otherwise requesting additional information about, listed artwork, as a buyer (in such capacity, a “Buyer”). THE COMPANY DOES NOT HOLD OR POSSESS TITLE FOR ANY ART LISTED FOR AUCTION ON THE SERVICE. THE COMPANY IS NEVER A PARTY TO ANY TRANSACTION BETWEEN A BUYER AND A SELLER.
The Service is offered and available to Users who are eighteen (18) years of age or older and who have not been suspended or removed from the Service by the Company for any reason. The Service is controlled and operated from facilities located in the United States. 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. By accessing or using the Service, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Service.
Company Account and Account Security
We reserve the right to withdraw, amend, or terminate the Service or any features or functionality of the Service, and any service or material we provide as part of the Service, in our sole discretion, without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to Users, including registered Users.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE COMPANY IS NOT, AND UNDER NO CIRCUMSTANCES WILL BE, A PARTY TO ANY AGREEMENT OR CONTRACT BETWEEN A BUYER AND A SELLER FOR THE SALE OR TRADE OF ANY ARTWORK LISTED FOR AUCTION THROUGH THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. THE COMPANY WILL HAVE NO LIABILITY FOR YOUR INTERACTIONS WITH OTHER USERS, OR FOR ANY USER’S ACTION OR INACTION.
By registering for the Service and providing the Company with your email address, you consent to our using your email address to send you notices concerning the Service, including any notices required by law, in lieu of sending communications by postal or other parcel delivery or courier service. You also consent to our use of your email address to send you other messages, including changes to the Service, special offers, and newsletters. You may unsubscribe from any such messages using the link provided at the bottom of the email message.
Our Proprietary Rights
The Service, including the Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (“Company Content”) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and/or other intellectual property or proprietary rights laws. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Service, except as follows:
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
You may store files that are automatically cached by your web browser for display enhancement purposes.
You may print one copy of a reasonable number of pages of the Website for your own personal use and not for further reproduction, publication, or distribution.
If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal use; provided that you agree to be bound by our end user license agreement for such applications.
If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
Modify copies of any materials from the Service, including any materials provided on the Website.
Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
Use any Company Content, alone or together with any other content, in a way that infringes the intellectual property rights of any third party.
The Company name, the term "Greenhouse Auctions," the Company logo, the phrase "good for art, art for good," and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans used in the Service or on the Website are the trademarks of their respective owners.
The Listing Process
A Seller seeking to list art for auction through the Service (an “Auction Listing”) must submit the subject art (the “Lot”) for consideration by e-mailing firstname.lastname@example.org and providing the Company with a retail asking price (or value) at which the Seller (or a gallery or other retailer on its own or the Seller’s behalf) would list the Lot for a standard retail sale (the “Retail Asking Price”). Seller must also submit the following details about the Lot:
A high-resolution image (no smaller than 2700 pixels wide or 1500 pixels wide without compression, equivalent to at least 4MB (four megabytes).
Full cataloguing details that meet our criteria as set forth in our cataloguing specs (to be provided separately to anyone wishing to submit a Lot) (the “Specs”).
At least one video of the artist or artists that created the Lot, which video(s) shall be between two and five minutes in length and otherwise meeting the Specs.
A report regarding the condition of the Lot, in accordance with the Specs.
Any other information and content that we may request in connection with the Lot.
After reviewing Seller’s submissions, the Company may, in its sole discretion, accept the Lot for listing on the Website, and the Company shall have no liability whatsoever to any prospective Seller in connection with a decision not to list a proposed Lot. The Company and Seller shall then discuss, in good faith, and agree on a Low Presale Estimate, a High Presale Estimate, and a Reserve for the Lot. “Low Presale Estimate” means the lowest price at which the Lot is expected to sell. “High Presale Estimate” means the highest price at which the Lot is expected to sell. “Reserve” means the minimum price at which the Lot will actually sell through the Website. Under no circumstances shall the Reserve be higher than the Low Presale Estimate. The Company shall have sole discretion to set the opening bid amount for all Lots.
Once the submitted Lot has been accepted by the Company, the Seller will work with the Company to prepare and approve informational and promotional material for the Lot for listing on the Service or elsewhere (the “Catalogue”). Although the Company may seek input from the Seller regarding the formatting, content, and appearance of a Catalogue, the Company shall have the sole right to determine the final design of the Catalogue. The Company may request that Seller submit additional information or media regarding the Lot for inclusion in the Catalogue. Seller hereby grants to the Company an unlimited, worldwide, royalty-free license to use any such submitted photographs, videos, and other content you provide to the Company, including, without limitation, to curate an Auction Listing or in any online or print media, promotional materials, or social media posts. After an Auction Listing ends, images of the applicable Lot and the applicable artist’s profile, photograph, and videos may remain on the Website, and may continue to be used by the Company for any other purpose, indefinitely.
For each Lot accepted by the Company for listing on the Service in an Auction Listing, the applicable Seller agrees that such Seller shall post at least two publicly viewable social media posts on a popular third-party social media website (such as Facebook or Instagram) to promote the Auction Listing, as follows: first, a post at the time the digital Catalogue for such Auction Listing is published on the Website (i.e., when the Company makes the Auction Listing publicly known), and second, at the time of, or shortly prior to, the start of the Live Auction Bidding Period.
If the Seller is willing to accept the highest bid, regardless of the amount, the Seller can agree to set the Reserve to be zero dollars ($0.00) or “no Reserve.” If the submitted Lot is accepted for listing on the Service, Seller will be charged a fee determined in accordance with the below listed Pricing and Payment Terms (the “Pricing and Payment Terms”).
By submitting a Lot for listing, Seller represents and warrants that:
Seller owns and has good title to the Lot or Seller has full power and authority to represent the holder of title to the Lot in connection with listing the Lot for sale.
The Lot is free and clear of any mortgages, pledge, lien, charge, security interest, claim, or other encumbrance.
Seller has the right to transfer ownership of the Lot to the applicable Buyer without any restrictions or claims by anyone else.
The Lot is an authentic piece of artwork and complies in all respects with the cataloguing details provided to the Company.
The Lot is of a type that it can be securely packaged for shipment to any location in the world, and Seller is willing and able to prepare such Lot for shipping as soon as practicable following the end of the Auction Bidding Period.
All statements made and other information provided in any condition report, video, or other content submitted to the Company in connection with a Lot is true, complete, and not misleading.
The Lot has never previously been sold to any individual or entity.
The Lot does not infringe, violate, dilute, or misappropriate the intellectual property rights of any other person or entity and there are no claims pending or threatened by any person or entity with respect to the ownership, validity, enforceability, effectiveness, or use of the Lot.
There is no claim, action, suit, proceeding, or governmental investigation (“Action”) of any nature pending or, to Seller’s knowledge, threatened against or by Seller (a) relating to or affecting the Lot or (b) that challenges or seeks to prevent, enjoin, or otherwise delay the sale or transfer of the Lot. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.
If any of the above representations or warranties are incorrect, Seller shall be responsible for reimbursing and indemnifying (i) Buyer for all fees and costs paid by Buyer in connection with the applicable Lot and (ii) the Company for all costs and expenses incurred by the Company in connection with the Lot and the applicable Auction Listing for said Lot.
At all times prior to and during and Auction Bidding Period, as between Seller and the Company, Seller shall retain title to the Lot, and at no time shall title transfer to the Company. Seller retains all risk of loss, theft, or damage to the Lot until the Lot is delivered to Buyer, and Seller shall replace, repair, or refund any such Lot that is lost, stolen, or damaged after Buyer has paid for such Lot. Upon entering into a Seller Agreement between Seller and the Company (to be provided separately), Seller may not withdraw a Lot from the Website or from an Auction Listing without the Company’s prior consent, which may be offered or withheld in the Company’s sole discretion. Withdrawal of a Lot may be subject to a Withdrawal Fee as set forth in the Pricing and Payment Terms.
Seller shall maintain all Lots free and clear of, from, and against all liens and encumbrances of any nature whatsoever.
Bids may be submitted by Users only during the dates and times specified through the Service as applicable to a particular Auction Listing (the “Auction Bidding Period”). For a period of time prior to the Auction Bidding Period (the “Advance Auction Bidding Period”), as determined by the Company, Buyers shall be permitted to submit bids pursuant to the Proxy or Advance Bidding procedures set forth below. Thereafter, a live auction shall take place entirely through the Website and Service (the “Live Auction Bidding Period”), which shall last for an amount of time determined by the Company, and during which Buyers shall be able to see the current high bid and place additional bids. In connection with a bid, the Company may place a temporary hold on a bidding Buyer’s credit card up to the maximum fee that Buyer may be required to pay to the Company in the event that such bid is the winning bid. As soon as a Buyer places and confirms a bid amount, the bid is submitted. Buyers submitting a bid accept and agree that bids submitted in this way are final and that, under no circumstances may such bids be amended, retracted, or revoked. The Company is not responsible for any errors made by a Buyer in bidding.
Bidding increases in steps (bidding increments) to be determined in the Company’s sole discretion. Bidding values are shown in United States currency.
Absentee or Advance Bidding – A Buyer may elect to submit a bid during the Advance Auction Bidding Period. To do so, a Buyer shall provide to the Service the maximum Hammer Price such Buyer is willing to pay for a Lot (an “Absentee Bid”). The Service will then automatically use this information to bid on behalf of such Buyer at the next minimum bid increment during the Live Auction Bidding Period, up to the maximum about of the Absentee Bid. The Service will follow this process for all Advance Bids until a new high bid is established. All Advance Bids submitted will remain confidential and will not be shared with any other User.
During an Auction Bidding Period, the Company may provide to the applicable Seller certain information regarding the Auction Listing, in Greenhouse’s sole discretion, including, without limitation, for example, the volume of bids placed and the relative placement of those bids in relation to the Reserve.
The Company shall not be responsible to for the condition of a Lot. Any reference to condition of a Lot stated in an Auction Listing or elsewhere on the Website may not amount to a full description of the Lot’s condition, and images may not show the condition of a Lot clearly. Condition reports may be available to help you evaluate the condition of a Lot, and they may be provided for the convenience of a Buyer, but such condition reports are for guidance only. Lots are sold “as is” without any representation or warranty or assumption of liability of any kind as to condition by the Company.
The Company reserves the right to take any actions it reasonably considers appropriate to ensure that the Auction Bidding Period runs smoothly in accordance with legal obligations, including, without limitation, cancelling an Auction Listing and suspending or terminating the applicable Auction Bidding Period. THE COMPANY SHALL HAVE NO LIABLITY TO BUYERS OR SELLERS FOR ANY SUCH ACTIONS WHICH IT MAY TAKE DURING THE AUCTION BIDDING PERIOD.
Auction End Process
The winner of a particular Auction Listing (the “Winning Buyer”) shall be the Buyer that places the highest bid that meets or exceeds the Reserve for such Auction Listing during the Auction Bidding Period; provided, however, that, in the event multiple Buyers submit the same high bid, the earlier bid (based on the date time stamp of bid submission) will be deemed the highest bid (the "Winning Bid"), and such Buyer that placed the earlier bid shall be the Winning Buyer. For the avoidance of doubt, if a bid placed during a Live Auction Bidding Period is equal to an Absentee Bid placed during the applicable Advance Auction Bidding Period, the Winning Bid shall be the earlier submitted Absentee Bid, and the Buyer that submitted such Absentee Bid shall be the Winning Buyer.
Upon the close of an Auction Bidding Period, the applicable Seller and the Winning Buyer agree that a contract is automatically formed between such Seller and such Winning Buyer whereby the Winning Buyer shall pay the fees listed in the Pricing and Payments Terms, and Seller shall transfer the Lot to the Winning Buyer.
Once the Winning Bid has been determined, the Company may post on the Website or elsewhere the total price for a collection of Lots that were promoted together and auctioned as part of the same group of Lots and the amount of the Seller Fee that will be donated to a charitable organization in connection with such group of Auction Listings.
At the end of each Auction, the Company will charge both the Seller Fee and Buyer Premium in accordance with its Pricing & Payment Terms. After the Winning Buyer has submitted all required payments to the Company, the Company will provide the contact information of the Winning Buyer to the Seller and the Seller to the Winning Buyer so that they can arrange for the transfer of the Lot (including, if applicable, shipping, handling, and insurance). The Company shall not have any responsibility for the transportation or delivery of a Lot to the Winning Buyer.
Seller and the Winning Buyer each agree to act in good faith to arrange for the shipping or pickup of the Lot as soon as reasonably practicable and for the payment of shipping, handling, and insurance fees. Seller shall be responsible for arranging the logistics of shipping, handling, and insurance unless the Winning Buyer agrees to arrange for the Lot to be picked up from a location of Seller’s choice, and the Winning Buyer shall be solely responsible for paying for all such shipping, handling, and insurance charges. Assuming the Winning Buyer has submitted all required payments to the Company, shipment or pickup of the Lot shall occur within four (4) weeks from the end of the Auction Bidding Period. Payments between Buyers and Sellers (for example, with respect to shipping, handling, and insurance costs) shall always be in United States currency unless the parties mutually agree otherwise, and Sellers agree to accept cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds; provided, however, that the applicable Buyer shall be solely responsible for, and shall promptly pay or reimburse, any additional fees associated with an electronic or wire transfer or other fees associated with the transfer of payment. Sellers may, but shall not be required to, accept other payment methods.
The Company may make available for the benefit of Buyers and Sellers a module through the Service to provide a cost estimate for inspection, packaging, shipping, and/or insurance from Convelio, Inc. (“Convelio”), a third-party that offers art shipping, insurance, and related services. Buyers may opt to use Convelio to ship and insure a purchased Lot, and, if Buyer exercises such option, the applicable Seller shall provide reasonable cooperation to Buyer and Convelio to arrange for Convelio to inspect, package, ship, and/or insure the Lot. The Company is not responsible for, and shall have no liability whatsoever in connection with, the services provided by Convelio, including, without limitation, the cost estimate provided through the Service. Convelio’s services are subject to their own terms and conditions, and the Company makes no representations or warranties with respect thereto.
Unsold Lots. The Company does not guaranty that any Lot will sell during an Auction Bidding Period or attract a bid at least equal to the Reserve. In the event that a Lot does not sell during an Auction Bidding Period, the Company shall have no further responsibility to Seller with respect to such Lot. Notwithstanding the foregoing, the Company shall have the option, but not the obligation, to exercise an option to sell the Lot for seven (7) days following the end of the Auction Bidding Period (the “Post-Auction Sale Period”) at a price equal to or greater than the Reserve or some lesser amount consented to by Seller. If the Lot is sold during a Post-Auction Sale Period, Seller shall be bound by the Pricing and Payment Terms, and for purposes of calculating the Seller Fee, the Hammer Price shall equal the price at which the Lot sold during the Post-Auction Sale Period.
Pricing and Payment Terms
Sellers’ fee: For any Auction Listing, the final bid for a Lot at the close of such auction shall be the “Hammer Price.” Five percent (5%) of the Hammer Price shall be withheld by the Company (the “Seller Fee”) as payment for the services provided by the Company to Seller, and the remainder of the Hammer Price shall be paid to Seller by Greenhouse Auction, subject to the additional conditions in this section. It is the Company’s intent that the entirety of the Seller Fee shall be donated to a scholarship fund administered by the Thurgood Marshall College Fund; provided, however, that the Company reserves the right to donate any or all Seller Fees to a comparable charitable organization, and the Company shall have no liability whatsoever with respect to the ultimate donation or use of the Seller Fee.
Assuming that the applicable Purchase Price (as defined below) with respect to a particular Lot is actually received by the Company (and such payment has cleared), the Company shall, within five (5) business days after receiving confirmation that the applicable Lot has been shipped to the Winning Buyer or picked up by such Winning Buyer or Winning Buyer’s representative, transfer the Hammer Price less the Seller Fee to an account designated by the Seller or provide a check to Seller for the Hammer Price less the Seller Fee. Any transfer fees (e.g., wire transfer fees) shall be deducted from such payment to Seller. If the Company does not actually receive the Purchase Price, the Company shall have no obligation whatsoever to pay any amount to Seller.
Sellers have the option to match the donated Seller Fee by informing the Company of Seller’s intent to make a matching donation. Notwithstanding the foregoing, if Seller so informs the Company of its intent to make a matching donation, twice the Seller Fee (i.e., 10%) shall be reduced from the Hammer Price prior to payment of the remaining Hammer Price to the Seller, as set forth herein, and the entirety of the Seller Fee (including the matched donation), shall be donated to the charitable organization of the Company’s choice. The Company advises Seller to consult with Seller’s own accounting or tax counsel regarding any matching donation made by Seller. The Company expressly does not provide any representation or comment regarding the tax status or taxability of such matching donation.
If a Lot does not sell (whether because bidding does not exceed the Reserve, or otherwise), the Seller of such Lot shall not be responsible for any fees to the Company.
If a Seller wishes to withdraw a Lot from the Website and/or from an Auction listing after the Seller has entered into a Seller Agreement with the Company, Seller shall be responsible for paying a withdrawal fee equal to thirty percent (30%) of the High Presale Estimate (the “Withdrawal Fee”), which amount shall be paid to the immediately upon such withdrawal of the Lot.
Prior to bidding on a particular Auction Listing, the Company may require a Buyer to submit credit card or other financial information to verify Buyer’s ability to pay for a particular Lot. Following the conclusion of an Auction Bidding Period (defined below) in which a Lot is sold, the Company will deliver an invoice to the winning Buyer stating the total amount owed by such Buyer to the Company (i.e., the Purchase Price). Buyer agrees to pay the Purchase Price to the Company within ten (10) days of the close of the Auction Bidding Period via payment method acceptable to the Company (including, without limitation, by authorizing the Company to charge the credit card already provided to the Company by Buyer).
If the Winning Buyer fails to pay the Purchase Price (and any applicable taxes) in full when due, the Company will be entitled to do one or more of the following (as well as enforcing any other available rights or remedies):
The Company may charge such defaulting Buyer interest from the date such Purchase Price is due at a rate of one percent (1%) per month on the unpaid amount due;
The Company can cancel the sale of the Lot, and, at the Company’s and the applicable Seller’s mutual option, sell the Lot again, publicly or privately, on any terms deemed appropriate, in which case the defaulting Buyer must pay to the Company any shortfall between the Purchase Price and the proceeds from the resale. The defaulting Buyer shall also pay all costs, expenses, losses, damages and legal fees the Company and Seller must pay or may suffer as a result of the default;
The Company may, in its sole discretion, pay the Seller an amount up to the net proceeds payable in respect of the amount bid by the defaulting Buyer in which case such defaulting Buyer acknowledges and understands that the Company will have all of the rights of the Seller to pursue the defaulting buyer for such amounts;
The Company may hold the defaulting Buyer legally responsible for the Purchase Price and may begin legal proceedings to recover it together with any late-payment interest, legal fees, and costs to the fullest extent allowed by law; and
The Company can take any other action it deems necessary or appropriate.
Exclusivity of Listing
EACH SELLER HEREBY ACKNOWLEDGES AND AGREES THAT, DURING THE PERIOD BEGINNING WHEN SELLER’S SUBMITS A LOT FOR LISTING ON THE SERVICE AND EXECUTES A SELLER AGREEMENT WITH THE COMPANY AND ENDING UPON THE CONCLUSION OF THE APPLICABLE POST-AUCTION SALE PERIOD, SELLER MAY NOT LIST, OFFER, OR OTHERWISE MAKE AVAILABLE FOR SALE SUCH LOT ON ANY OTHER AUCTION, TRADE, DEALERSHIP, BROKER, GALLERY, OR OTHER SIMILAR SALE, AUCTION, OR LISTING SERVICE OR OTHERWISE MAKE THE LOT AVAILABLE FOR SALE, AND SELLER SHALL NOT ACTUALLY SELL THE LOT OTHER THAN THROUGH THE SERVICE; PROVIDED, HOWEVER, THAT THE FOREGOING RESTRICTION SHALL NOT LIMIT THE ABILITY OF THE SELLER TO PROMOTE THE AUCTION LISTING ON THIRD PARTY WEBSITES OR SERVICES IF, AND ONLY IF, SUCH POSTED DETAILS INCLUDE A LINK TO, OR INSTRUCTIONS DIRECTING ANY INTERESTED PARTIES TO, THE AUCTION LISTING ON THE SERVICE. IF SELLER OFFERS FOR SALE OR ACTUALLY SELLS THE LOT IN BREACH OF THIS EXCLUSIVITY AGREEMENT, SELLER SHALL BE SUBJECT TO PAYMENT OF A WITHDRAWAL FEE.
FURTHERMORE, EACH SELLER HEREBY ACKNOWLEDGES AND AGREES THAT, ANY AUCTION LISTING MAY BE REMOVED FROM THE WEBSITE AND SERVICE SOLELY AND ENTIRELY AT THE COMPANY’S DISCRETION.
Post-Sale Buyer Obligations
For five (5) years following the date that a Buyer makes full payment of the Purchase Price for a particular Lot (the “No Resale Period”), such Buyer will not sell, auction, trade, or otherwise transfer title to the applicable Lot other than as a gift to a personal friend or family member and not in exchange for anything of value (a “Gift”); provided, however, that any such Gift to a friend or family member shall be accompanied by a written undertaking by such transferee to be bound by the terms of this section (including the restriction on sale of the Lot during the No Resale Period, the Right of First Refusal (defined below), and the Artist’s Commission (defined below)).
If a Buyer (or the recipient of any Gift) (collectively, the “Offeror”) wishes to sell, auction, trade, or otherwise transfer a Lot after the No Resale Period, the artist that originally created the Lot (as set forth in our Catalogue originally describing the applicable Auction Listing) (the “Artist”) shall have a right of first refusal with respect to such Lot (the “Right of First Refusal”).
Subject to the additional and more specific terms and conditions of the Right of First Refusal set forth in a Bidding and Buyer Agreement between the applicable Buyer and the Company, the Offeror shall notify the Artist prior to any sale or transfer of a Lot (other than a Gift), and the Artist shall have the first opportunity to purchase the Lot on terms and conditions no less favorable than those proposed to or by a prospective third-party transferee.
If Offeror fully complies with the Right of First Refusal and the applicable Artist declines to exercise such Right of First Refusal, Offeror shall be required to pay to the Artist five percent (5%) of any proceeds received in connection with any transfer of the applicable Lot (the “Artist’s Commission”). For the avoidance of doubt, if such transfer involves consideration other than cash, the Offeror shall be required to pay five percent (5%) of the reasonable value of such consideration to the Artist, in cash or other liquid funds.
All payments between the Offeror and an Artist pursuant to the Right of First Refusal or the Artist’s Commission shall be made directly between the parties to such transaction. The Company may, but shall not be required to, facilitate communication between the parties, but in no event shall the Company be liable to an Offeror or an Artist in connection with a Right of First Refusal or Artist’s Commission, and the Company shall not be a party to any such transaction. Payments required to be made in connection with any Right of First Refusal or Artist’s Commission shall be made by cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds.
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of art or intellectual property to and from the United States or other countries).
For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation, including any commercial solicitation not expressly authorized by the Company.
To collect or harvest any personally identifiable information, including account names, from the Service.
To impersonate or attempt to impersonate the Company, a Company employee, another User, or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing), or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, or hiding or attempting to hide your identity.
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm the Company or any User of the Service or expose them to liability.
Additionally, you agree not to:
Use the Service in any manner that could disable, overburden, damage, or impair the Service or the Website or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Website.
Copy, distribute, or disclose any part of the Service in any medium, including without limitation, by any automated or non-automated “scraping.”
Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Website (except that the Company grants the operators of public search engines revocable permission to use spiders to copy publicly available material from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
Use any manual or automated process to monitor, copy, or decipher any of the material or information transmitted to or from, or made available on or through the Service or for any other unauthorized purpose.
Use any device, software, or routine that interferes with the proper working of the Service.
Use any means or technology other than those provided or authorized by the Service to access any content on the Service.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, bypass security measures, interfere with, damage, or disrupt any parts of the Service, the server on which the Website is stored, or any server, computer, or database connected to the Service.
Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with or compromise the proper working of the Service or the integrity or security of the system on which the Service operates.
Without limiting the foregoing, we reserve the right, in our sole discretion and without limiting any other available remedies, to limit, suspend, or terminate your User Account(s) and access to the Service and remove any hosted content, remove or demote any Auction Listings, and take technical and/or legal steps to prevent you from using the Service in the event that we believe you are abusing the Service in any way.
Monitoring and Enforcement; Termination
Remove any Auction Listing from the Service, or modify any such listing, at the Company’s sole discretion, without refunding any or all applicable fees.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY OR ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES. However, we do not undertake to review any material before it is posted on the Website, and we cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
Reliance on Information Posted
The information presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of information provided by a Seller, artist, or other User. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other User of the Service or visitor to the Website, or by anyone who may be informed of any of its contents. The Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Information About You and Your Use of the Service and Visits to the Website
Linking to the Website and Social Media Features
You may link to our homepage or any Auction Listing page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
The Service may provide certain social media features that enable you to:
Link from your own or certain third-party websites to certain content on the Website.
Send emails or other communications with certain content, or links to certain content, on the Website.
Cause limited portions of content on the Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
Establish a link from any website that is not owned by you.
Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Service, including the Website, is based in the state of New York in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that any content downloaded or otherwise obtained through the use of the Service will be free of viruses or other destructive code. Any such content is downloaded at your own risk. you are solely responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT OR ON ANY WEBSITE LINKED TO IT.
WE WILL NOT BE RESPONSIBLE FOR TYPOGRAPHICAL OR OTHER ERRORS THAT MAY APPEAR ON THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY INACCURATE PRICING OR OTHER INFORMATION PROVIDED RELATIVE TO A PARTICULAR LOT. IF INACCURATE INFORMATION IS GIVEN ABOUT A LOT, INCLUDING ITS PRICE, AVAILABILITY, DESCRIPTION, CONDITION, OR OTHER DETAILS DUE TO A TYPOGRAPHICAL ERROR, THE COMPANY IS NOT RESPONSIBLE FOR SUCH ERROR OR ITS CORRECTION BUT WILL ATTEMPT TO CORRECT SUCH ERROR PROMPTLY. WE RESERVE THE RIGHT TO REFUSE OR CANCEL ANY LISTINGS FOR LOTS LISTED AT AN INCORRECT PRICE.
THE COMPANY CANNOT BE HELD LIABLE FOR ANY PERCEIVED OR ACTUAL DAMAGES ARISING FROM THE CONTENT, OPERATION, OR USE OF THE SERVICE, INCLUDING FOR ANY INACCESSIBILITY OR IMPROPER FUNCTIONALITY OF THE SERVICE WITH YOUR WEB BROWSER, MOBILE DEVICE, AND/OR OPERATING SYSTEM.
WE ARE NOT RESPONSIBLE FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE. THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES AND THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SUCH PRODUCT OR SERVICE.
While we do everything within our control to ensure that a Buyer’s participation in Auction Listing and ability to place a bid runs smoothly, technical problems beyond our reasonable control sometimes occur. These include, for example, broadband and other internet capacity constraints, corporate firewalls, errors in the quality or display of digital images, errors in software and other technical problems. THE COMPANY DOES NOT ACCEPT AND HEREBY DISCLAIMS ALL LIABILITY FOR ANY SUCH DIFFICULTIES OR ERRORS, REGARDLESS OF THE SOURCE OR CAUSE OF SUCH DIFFICULTIES OR ERRORS.
Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR THIRD-PARTY LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, MANAGERS, OR MEMBERS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE, OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FORM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IN NO EVENT WILL THE AGGREGATE MAXIMUM LIABILITY OF THE COMPANY, ITS AFFILIATES, AND THEIR RESPECTIVE OWNERS, EMPLOYEES, AGENTS, CONTRACTORS, AND THIRD-PARTY LICENSORS FOR ANY CLAIM IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO THE COMPANY HEREUNDER IN THE PAST TWELVE (12) MONTHS. FOR PURPOSES OF THIS LIABILITY DISCLAIMER, “THIRD-PARTY LICENSOR” DOES NOT INCLUDE YOU. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. The Company 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.
Limitation on Time to File Claims
Waiver and Severability
Your Comments and Concerns
Bidding and Buyer Agreement
This Bidding and Buyer Agreement (this “Agreement”), effective as of the date that you click “I accept” or otherwise indicate your acknowledgment of this Agreement, is entered into between you, as a Buyer of art or other goods on or through the Service (defined below) and/or as a user of the Service for other purposes (“Buyer,” “you,” or “your,” as applicable), and Emerging Art Auctions LLC (doing business as Greenhouse Auctions, and referred to herein as “Greenhouse Auctions,” the “Company,” “we,” “us,” or “our,” as applicable).
This Agreement applies to all Auction Listings on the Service for which you submit a bid and/or other offer (collectively, a “Bid”) to purchase art or other goods (each, a “Lot”). From time to time, in connection with your submission of a Bid, you may be required to agree to a separate or updated Buyer Agreement. Any User (including, without limitation, you) that submits a bid and/or other offer to purchase a Lot is referred to herein as a “Bidder.”
THE AUCTION BIDDING PERIOD
We may, but shall not be required to, permit Bids to be submitted for a particular Lot during an Advance Auction Bidding Period, during which time, Bidders may submit a Bid that represents the maximum Hammer Price such Bidder is willing to pay for a Lot. This Absentee Bid will then automatically be applied during the Live Auction Bidding Period to bid on such Bidder’s behalf at the next minimum bid increment during the Live Auction Bidding Period, up to the maximum amount of the Absentee Bid.
The Reserve is the minimum bid required from a Bidder to initiate a sale of the applicable Lot from a Seller to a Bidder at the end of the applicable Auction Bidding Period.
Without limiting the Buyer Representations and Warranties stated below, you hereby represent and warrant that all information you or any agent on your behalf provide in connection with Lot and a Bid is true, correct, and complete to the best of your knowledge, and we take no liability for such information.
The winner of a particular Auction Listing (the “Winning Buyer”) shall be the Bidder that places the highest bid that meets or exceeds the Reserve for such Auction Listing during the Auction Bidding Period; provided, however, that, in the event multiple Bidders submit the same high Bid, the earlier Bid (based on the date time stamp of bid submission) will be deemed the highest Bid (the "Winning Bid"), and such Bidder that placed the earlier Bid shall be the Winning Buyer. For the avoidance of doubt, if a Bid placed during a Live Auction Bidding Period is equal to an Absentee Bid placed during the applicable Advance Auction Bidding Period, the Winning Bid shall be the earlier submitted Absentee Bid, and the Bidder that submitted such Absentee Bid shall be the Winning Buyer.
During the Auction Bidding Period, we will not provide you with any information regarding other Bidders’ Bids, and if you submit the Winning Bid for a particular Lot we will so inform you on or immediately after the conclusion of the Auction Bidding Period.
In no event shall a Buyer and Seller conspire to use the Service to facilitate the purchase of a Lot outside the Auction Bidding Period or otherwise at the exclusion of Greenhouse Auctions and/or for the purpose of avoiding the payment of any compensation or fees that would otherwise be due to Greenhouse Auctions.
On or promptly following the conclusion of an Auction Bidding Period in which you are the Winning Buyer, we shall provide your contact information to the applicable Seller, and we shall provide such Seller’s contact information to you. You agree to act in good faith to arrange for shipping or to pick up the Lot as soon as practicable following the conclusion of the Auction Bidding Period and your payment of the Purchase Price (as defined in the Pricing and Payment Terms). You must pay the full Purchase Price (which includes, for the avoidance of doubt, the Hammer Price, the Buyer Premium, and Sales Tax) prior to the Seller being required to ship the Lot to you or otherwise make it available to you for pickup.
Greenhouse Auctions shall arrange for the exchange of funds related to your purchase of the applicable Lot from the Seller; however, if you and the Seller opt to arrange for shipping or pickup of the applicable Lot other than through Convelio Shipping, Inc., you and the Seller shall be responsible for arranging such shipping or pickup, including payment for such shipping, handling, packaging, and insurance costs (which costs shall be borne solely by you). If Seller pays for any such costs, you agree to immediately reimburse Seller therefor in the form of cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds. Seller may, but shall not be required to, accept other forms of payment.
Seller shall be responsible for arranging the logistics of shipping, handling, and insurance unless you have opted to use Convelio Shipping, Inc. for such purpose and arrange for their involvement through the Service or unless you agree to make such arrangements or arrange for the Lot to be picked up from a location of Seller’s choice. You shall be solely responsible for paying for all shipping, handling, and insurance fees and charges. You agree to act in good faith to arrange for the shipping or pickup of the Lot as soon as reasonably practicable after your payment of the Purchase Price and all applicable shipping, handling, and insurance costs and fees.
If you place a Winning Bid, you will be charged a fee determined in accordance with the Pricing and Payment Terms, which Pricing and Payment Terms are incorporated herein by reference. In connection with your Bid, we may place a hold on your credit card up to the maximum fee you may be required to pay pursuant to the Pricing and Payment Terms. At, or shortly following the conclusion of the Auction Bidding Period in which you are the Winning Buyer, we shall deliver an invoice to you stating the total amount owed in connection with such Winning Bid. You agree to pay the Purchase Price to the Company within ten (10) days of the close of the Auction Bidding Period via payment method acceptable to Greenhouse Auctions (including, without limitation, by authorizing us to charge your credit card already provided to us).
The Seller shall not be required to make the Lot available to you until the Purchase Price has been paid in full.
You shall not place a Bid on any Lot at the direction of or in coordination with a Seller of such Lot. You shall not take any other action to artificially increase the price of any Lot without the actual intent to purchase said Lot in good faith. In the event that you or any individual or entity acting on your behalf submits a Bid in contravention of this paragraph, we may hold you liable for paying the Buyer Premium associated with the actual Winning Bid, even if such Winning Bid is not placed by you.
You agree not to circumvent the Service in order to buy a Lot from a Seller who you contacted, or who contacted you, through the Service or otherwise. In the event such a sale takes place within ninety (90) days of the conclusion of an Auction Bidding Period, you agree to pay the applicable Buyer Premium to us, in accordance with the Pricing and Payment Terms, as if the sale were facilitated through the Service, such fees being calculated based on the Reserve or the actual sale price, whichever is greater.
Close of Sale
If you are the Winning Buyer, you agree to pay the Winning Bid (and all other fees comprising the Purchase Price), regardless of the actual final value of such Winning Bid or your belief regarding the actual value of the applicable Lot.
All transactions facilitated through the Service are strictly between Buyer and Seller. The Service facilitates the listing, marketing, and sale of Lots to wide audiences, and we connect Sellers and Buyers to consummate the purchase thereof through an auction system. It is the responsibility of the Buyer and Seller to finalize the transfer of title to a Lot, the shipping or other delivery of the applicable Lot, and compliance with all accompanying governmental rules and regulations.
While we will exercise reasonable efforts to prevent fraudulent use of the Service, we cannot be held liable for: (1) failure of a Seller to convey title or possession to you or (2) discovering that the Lot had previously been sold and that your purchase is a second or subsequent sale of the Lot.
If you pay for a Lot and Seller fails to properly convey and provide such Lot to you, free and clear of all liens, we encourage you to contact law enforcement authorities. We agree to provide our reasonable assistance to you in connection with such investigation.
Buyer Representations and Warranties
By submitting a Bid for a Lot, you represent and warrant that you (i) are of legal age to enter into a contract in the jurisdiction where you reside, (ii) that you intent to enter into a purchase transaction with the applicable Seller if you are the Winning Buyer of such Lot (iii) that you have the legal right and/or authority to purchase and hold title to the Lot, without any consent or notification to or from any third party, (iv) that you have available and liquid funds necessary to pay the full Purchase Price immediately upon the conclusion of the Auction Bidding Period, and (v) that all information provided by you when you registered for the Service is complete, accurate, and not misleading. You further agree that you shall update and maintain as current all contact and registration information you provide to us, whether through the Service or otherwise. Greenhouse Auctions reserves the right to request confirmation of your identity and contact information at any time and for any reason, and you agree to act in good faith and to provide reasonable cooperation, documentation, and/or other proof of identity and contact information requested by Greenhouse Auctions.
You understand and agree that we are not responsible for any description or condition of the Lot, and we make no representations or express any opinions concerning any Lot. We do not examine Lots or research title documentation or provenance, nor do we undertake any duty to do any of the foregoing for the benefit of Buyers, Sellers, or any other party.
No Resale; Right of First Refusal; Artist’s Commission
NO RESALE PERIOD
You agree that, for five (5) years following the date that you submit full payment of the Purchase Price for a particular Lot (the “No Resale Period”), you will not sell, auction, trade, or otherwise transfer title to the applicable Lot other than as a gift to a personal friend or family member and not in exchange for anything of value (a “Gift”); provided, however, that any such Gift to a friend or family member shall be accompanied by a written undertaking by such transferee to be bound by the terms of this section (including the restriction on sale of the Lot during the No Resale Period, the Right of First Refusal (defined below), the payment of the Artist’s Commission (defined below), and the requirement to ensure that any subsequent transferees of a Gift must also execute a written undertaking to be bound by the terms of this section). Any attempted or purported transfer of a Lot in contravention of this section shall be deemed null and void. Greenhouse Auctions, the applicable Seller, and the Artist (defined below) shall have the right to enforce this section and the No Resale Period and shall be deemed beneficiaries of this section.
RIGHT OF FIRST REFUSAL
If you (or the recipient of any Gift) (collectively, the “Offeror”) wish to sell, auction, trade, or otherwise transfer the Lot after the No Resale Period, the artist that originally created the Lot (as set forth in our Catalogue originally describing the applicable Auction Listing) (the “Artist”) shall have a right of first refusal, as set forth herein (the “Right of First Refusal”).
Prior to any transfer of a Lot you purchased on or through the Service (other than a Gift), Offeror shall first provide written notice of such proposed transfer to the Artist and to Greenhouse Auctions (the “Pre-Transfer Notice”). Greenhouse Auctions shall provide known and available contact information for the Artist or the Artist’s representative, but compliance with this Right of First Refusal shall at all times remain the sole responsibility of Offeror. The Pre-Transfer Notice shall include: (i) the name of the Lot and/or other description sufficient to identify the Lot, (ii) the name of the person or entity to which the Offeror seeks to transfer the Lot or that has offered to purchase the Lot, (iii) the price proposed to be paid for the Lot and other material terms and conditions of the proposed transfer, including a description of any non-cash consideration in sufficient detail to permit valuation thereof, and (iv) the proposed transfer date, which date shall not be less than sixty (60) days after the delivery of the Pre-Transfer Notice.
Provision of the Pre-Transfer Notice shall constitute an offer by the Offeror to sell the applicable Lot back to the Artist, which offer shall be irrevocable for sixty (60) days after the delivery of the Pre-Transfer Notice. By delivering the Pre-Transfer Notice, the Offeror represents and warrants to Greenhouse Auctions and to the Artist that (i) the Offeror has full right, title, and interest in and to the Lot; (ii) the Offeror has all the necessary power and authority and has taken all necessary action to sell such Lot pursuant to this Right of First Refusal; and (iii) the Lot is free and clear of any and all liens and other encumbrances other than those arising as a result of or under the terms of this Agreement.
Upon receipt of the Pre-Transfer Notice, the Artist shall have sixty (60) days to elect to purchase the Lot by delivering a written notice (the “ROFR Acceptance”) to the Offeror and Greenhouse Auctions stating that the Artist shall purchase the Lot on the terms set forth in the Pre-Transfer Notice. If the Artist does not deliver a ROFR Acceptance during the aforementioned sixty (60) day period, the Offeror may transfer the Lot to the third-party transferee named in the Pre-Transfer Notice on terms and conditions no more favorable to such transferee than those set forth in the Pre-Transfer Notice (a “Third-Party Transfer”). If such transfer does not occur within one hundred eighty (180) days of the delivery of the Pre-Transfer Notice, the rights provided hereunder shall be deemed to be revived and the Lot shall not be transferred unless the Offeree sends a new Pre-Transfer Notice in accordance with, and otherwise in compliance with, this Right of First Refusal.
The Offeror and the Artist shall take all actions as may reasonably be necessary to consummate the sale contemplated by this Right of First Refusal, including, without limitation, entering into reasonable agreements and delivering other instruments as may be deemed necessary or appropriate.
Greenhouse Auctions, the applicable Seller, and the Artist shall have the right to enforce this section and the Right of First Refusal and shall be deemed beneficiaries of this section.
If Offeror is in full compliance with the terms and conditions of the Right of First Refusal, and the Artist declines to exercise such Right of First Refusal or otherwise fails to deliver a ROFR Acceptance, Offeror shall be required to pay to the Artist five percent (5%) of any proceeds received in connection with any Third-Party Transfer (the “Artist’s Commission”). For the avoidance of doubt, if the Third-Party Transfer involves consideration other than cash, the Offeror shall be required to pay five percent (5%) of the reasonable value of such consideration to the Artist, in cash or other liquid funds.
All payments between the Offeror and an Artist pursuant to the Right of First Refusal or the Artist’s Commission shall be made directly between the parties to such transaction. Greenhouse Auctions may, but shall not be required to, facilitate communication between the parties, but in no event shall Greenhouse Auctions be liable to an Offeror or an Artist in connection with a Right of First Refusal or Artist’s Commission, and Greenhouse Auctions shall not be a party to any such transaction. Payments required to be made in connection with any Right of First Refusal or Artist’s Commission shall be made by cashier’s, bank, or certified check, electronic funds transfer, or wire transfer of immediately available funds.
In the event that you breach any provision of this Agreement, and/or if you fail for any reason to consummate the purchase of a Lot for which you are a Winning Buyer, in addition to and not in lieu of all remedies available in equity or at law, we and the applicable Seller shall have the right to:
Hold you liable for actual damages, including, without limitation, the full amount of the Purchase Price pursuant to the Pricing and Payment Terms and any other amount payable by you; and/or
Hold you liable for and charge to your credit card the maximum amount of Buyer Premium and Seller Fee that may have applied to your purchase and Seller’s sale of the applicable Lot.
In the event that either you or a Seller default on a transaction contemplated hereunder, we shall remain entitled to any fees applicable pursuant to the Pricing and Payment Terms.
In the event of a default by a Seller, you release us from all legal liability and agree to look only to the Seller for any recourse arising from said default. In such case, we shall provide contact information and other details regarding the Seller to allow you to pursue such recourse. If you default on your obligations under this Agreement, we may provide your contact information and other details to the applicable Seller.