We are Pierce Protocols Limited trading as Heni Leviathan (“Heni Leviathan” “we” “our” or “us”), a limited liability company registered in England and Wales under company number 05613954. Our registered office is at 126-134 Baker Street, London, England, W1U 6UE and our VAT number is GB 880 0793 13.
We own certain limited edition prints and other property directly and will sell those editions and property (“Heni Editions”) as principal. The contract for the sale of Heni Editions is made between us and buyers (“you” “your” and “buyer”). In other listings the owner will be a third party individual or company (“Seller”), in which case Pierce Protocols Ltd acts as agent for the Seller. The contract for the sale of such original artworks, limited editions prints and other property (“Seller Artworks”) will be between the Seller and buyer.
These Terms of Sale contain all the terms and conditions on which we and the Sellers contract with buyers for the sale of Heni Editions and Seller Artworks (together known as “Artworks”) via our site.
03. ACCOUNT REGISTRATION AND HOW TO BUY
Before buying any item on the site you will need to create an account with us. You will need to have valid payment details registered in order to buy. You may be able to buy Artworks using the “Buy Now” feature or the “Buy Now Make Offer” feature. Where available each feature will be indicated on a listing with the applicable button.
a) Buy Now
With ‘Buy Now’, we or the Seller list the Artwork for a fixed price only. Buy Now orders are binding on the buyer. When you place an order using this feature, you complete the transaction in accordance with these terms.
b) Buy Now Make Offer
Where the ‘By Now Make Offer’ feature is available, you can make an offer to us or the Seller to buy the Artwork for a lower price than the price listed by the Seller. We or the Seller can accept, reject, or counter your offer by suggesting another price. You are responsible for reading the full listing for an Artwork before making an offer or commitment to buy.
You are responsible for reading the full listing for an Artwork before making an offer or commitment to buy.
c) HENI Editions
Certain new releases of Heni Editions may be purchased in accordance with an application process. You may apply to purchase such Heni Editions from the site during an application period. We will allocate Heni Editions based on the online applications upon the expiry of the application period. The number of applicants may exceed the number of Heni Editions available and allocations will depend on availability. We will notify you of the outcome of your application as soon as reasonably practicable.
If your application is successful we will facilitate payment automatically in accordance with clause 6 d) below. If your application is only partially successful (e.g. you request 2 Heni Editions but you are only allocated 1 Heni Edition), then we will notify you with details of the number of Heni Editions allocated, the total price inclusive of VAT (where applicable) and delivery charges, and instructions as to how to pay. You must complete your purchase within the time period stated in the notification. If you do not complete the purchase within such time period you will no longer be eligible to purchase the applicable Heni Editions.
d) HENI Editions – sales in support of charities
From time to time we may participate in initiatives to raise money for charities. You may place your order for Heni Editions that we sell in support of a charity by clicking on the confirm order button at the end of the online order process. After we have acknowledged receipt of your order in accordance with clause 4 below, we will arrange for fabrication of the Heni Editions. Upon completion of fabrication, we will then arrange for delivery of the Heni Editions to you. Delivery will not take place until you have paid all applicable local tax duties. We estimate that the earliest completion date for fabrication of each Heni Edition will be ten weeks from the date of the order. We will update you as soon as possible once your order is ready to ship.
04. OUR CONTRACT
a) For all orders, once your order has been placed, we will send you an acknowledgment by email providing you with a customer order number and the cost of your order. This email is an acknowledgement that we have received your order and does not constitute acceptance of your order by us.
b) Unless we have notified you that we do not accept your order or you have cancelled your order in accordance with the cancellation procedures set out below, our acceptance of your order will take place when we notify you that we have dispatched the Artworks ordered by you, at which point a contract will come into existence between you and us or you and the Seller (as applicable).
c) We may be unable to accept your order. This might be because we are unable to obtain authorisation for your payment or we identify an Artwork error or a pricing error. If, for whatever reason, we do not accept your order, we will notify you of this and will refund to you any amounts that you have already paid to us for the Artwork.
05. DESCRIPTION AND CONDITION OF ARTWORKS
a) You acknowledge that, due to their age and type, Artworks may not be in perfect condition and may show signs of damage, restoration or repair, wear and tear or other imperfections. Our knowledge in relation to each Seller Artwork is dependent on information provided to us by the Seller, and we are not able to and do not carry out detailed condition checks or due diligence on each listing. Any reference to condition in a listing will not amount to a full description of the condition of the Artwork. Descriptions may refer to particular faults but an Artwork may have other faults or imperfections that are not expressly referred to in listing. Notwithstanding the foregoing, we shall exercise such reasonable care when making statements in listing descriptions in view of the information provided to us by the Seller.
b) We will take all reasonable care to ensure that prices of Artworks appearing on our site are correct at the time that the relevant information is entered onto the system. Although we aim to keep the site as up to date as possible, the information on the site at a particular time may not always reflect the position exactly at the moment you place an order.
c) Please note that all dimensions are approximate and illustrations and images are for identification and illustrative purposes only. Whilst we make every effort to display the colours accurately, we cannot guarantee that a device’s display of the colours accurately reflects the colour of the Artwork. Artworks purchased may vary from the images shown.
d) You acknowledge that descriptions of Artworks are not warranties and that each Artwork is sold “as is.” Information provided in respect of any listing, including in the online listing descriptions and whether written or oral is a statement of our opinion and not a representation of fact.
e) The intellectual property rights in each Artwork is owned by the artist who created it, or any third party to whom such rights have been transferred by the artist, and you shall have no right, title or interest in or to the intellectual property rights in any Artworks purchased by you from us.
f) The intellectual property rights in all images, photographs, illustrations and other content created by or for us relating to a listing or the site is owned by us and you shall have no right, title or interest in or to such intellectual property rights and may not use such materials without our prior written consent.
06. PRICE AND PAYMENT
a) All prices and charges are shown in United States Dollars. The actual amount to be paid in your home currency will be determined by the exchange rate used by your bank or credit card company when you are actually charged.
b) In addition to the purchase price, you agree to pay us any applicable buyer’s premium, artist resale royalty, VAT, any and all shipping and insurance expenses, and all other applicable charges. You must pay any customs or import duties or local sales or use taxes or equivalent taxes that may be payable. We are not responsible for any such duties or taxes that may be payable in respect of any Artwork purchased on our site. You should consult your own tax advisors.
c) VAT: All prices, fees and charges indicated on the site are exclusive of VAT (where applicable) at the current rates chargeable unless otherwise stated. From time to time, we will use the margin scheme for VAT in the UK.
e) It is possible that, despite our best efforts, some of the Artworks on our site may be incorrectly priced. If the correct price at the time of your order is higher than the price stated to you, we will contact you for instructions before we accept your order. If we accept and process your order where a pricing error could reasonably have been recognised by you as a mispricing, we may end the contract, refund to you any sums already paid and require that you return the Artworks to us.
f) Payment may be made by any of the methods specified on our site. You must pay for the Artworks before we dispatch them to you.
07. ARTIST RESALE RIGHT
The laws in certain countries entitle qualifying artists or their estates to a royalty known as the ‘artist’s resale right’ when any artwork created by the artist is sold for a price of EUR 1,000 or more. If these laws apply to an Artwork, you must pay us an extra amount equal to the royalty. We will pay the royalty to the appropriate collection agent on the Seller’s behalf. Artworks subject to the royalty will be indicated in the listing. If we have not identified an Artwork as being subject to the royalty in the listing and we have not collected the royalty, but we later become aware that the artist is entitled to it, then the buyer shall pay the resale royalty to us on receipt of an invoice. If we have charged the royalty on a listing and later become aware that the artist did not qualify for the resale royalty, then we will arrange for a refund to be paid to the buyer of the amount of the royalty paid to us.
The resale royalty is calculated as a percentage of the purchase price on a cumulative basis as follows and is payable as in addition to the purchase price:
Portion of the purchase price (in EUR)
From 0 to 50,000
From 50,000.01 to 200,000
From 200,000.01 to 350,000
From 350,000.01 to 500,000
The total charge for the resale royalty on any single purchase cannot exceed Euros 12,500.
08. DELIVERY OF ARTWORK
a) The costs of delivery of Artworks will be as displayed to you on our site during the order process.
b) We will arrange for delivery of Seller Artworks on behalf of the Seller. We will deliver your purchased Artworks to you by no later than three weeks after the date on which the contract is formed unless otherwise stated. Delivery will only be made once full payment for the Artworks has been received from you. We are not responsible for any delays or additional charges resulting from destination customs clearance processes. Timing may be impacted by Covid-19 restrictions or delays.
c) We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Terms of Sale that is caused by any act or event beyond our reasonable control (“Event Outside Our Control”). If an Event Outside Our Control takes place that affects the performance of our obligations under the Terms of Sale (i) we will contact you as soon as reasonably possible to notify you; and (ii) our obligations under the Terms of Sale will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Artworks to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
d) Orders shall be delivered to the address indicated by you at the time of ordering, save that we will only deliver to those countries found on the list shown on our site at the time of ordering and we do not deliver to P.O. boxes. We cannot be liable for any loss suffered by you as a result of you supplying us with incomplete or inaccurate delivery information. We are unable to redirect orders once the Artworks have been dispatched.
e) In the event that no one is available at your address to take delivery, a notice shall be left informing you of how to rearrange delivery or indicating from where the Artworks may be collected. If you do not take delivery or collect the Artworks within a reasonable time, we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the contract and charge you a reasonable amount by way of compensation for the costs that we incur as a result.
09. OWNERSHIP AND RESPONSIBILITY
You own the Artworks once we have received payment in full. Ownership will immediately revert to us or the Seller (as applicable) if we refund any such payment to you.
The risk in and responsibility for the Artworks will transfer to you from the time we deliver them to the address provided by you in your order. You are responsible for insuring the Artworks from this point.
10. CANCELLATION AND RETURNS FOR CONSUMERS IN THE EUROPEAN UNION
a) If you are a consumer residing in the UK or the European Union and the seller of the Seller Artwork you have bought (where applicable in the case of Seller Artworks) is not a consumer, you have a legal right to cancel your order at any time prior to delivery or within 14 days of delivery having been made (starting with and including the day after you receive the Artworks). This right, under the Consumer Contracts Regulations 2013, is explained in more detail in these terms.
b) To exercise your right to cancel, please contact us before the end of the 14 day period informing us of your wish to cancel and providing details of your name, address, contact details, customer order number, the date on which your order was placed and the Artworks to be returned. You may use the cancellation form in the Schedule to these Terms of Sale, but you do not have to. Any notice given by you after the 14 day time limit will not be effective to cancel your order.
c) If you cancel your order after the Artworks have been dispatched to you (or at a time when it is too late for us to prevent them being dispatched), you must return them to us at Pierce Protocols Ltd, 29-35 Lexington Street, London, W1F 9AH or such other address as we may specify) by recorded delivery within 14 days of notifying us that you wish to cancel the contract. You must retain the recorded delivery receipt for your own purposes in order to provide proof to us that you have returned the Artworks should this be required. You are responsible for ensuring that the Artworks are adequately protected during transit, bearing in mind their nature and value. Artworks must be returned in a saleable condition. We ask that you return the Artworks in the same packaging.
d) If you exercise your right cancel set out in this clause, you must pay the costs of return.
e) If you exercise your right to cancel, we will refund you the price you paid for the Artworks, including delivery costs but subject to any applicable deductions as described in clause f below. The refund will be made to you by the method you used for payment.
f) In calculating the amount to be refunded to you:
(i) the maximum amount that we will refund for delivery costs will be the costs of delivery by the least expensive delivery method we offer.
(ii) we may make deductions to reflect any reduction in the value of the Artworks that is the result of unnecessary handling of the Artworks by you. If we make the refund to you before we are able to inspect the Artworks and later discover that you have handled them unnecessarily, you must pay us an appropriate amount.
g) We will process any refunds due to you within 14 days from the day on which we receive the Artwork back from you or, if earlier, the day on which you provide us with evidence that you have sent the Artwork back to us in accordance with these Terms of Sale. We will notify you by email once your refund has been processed.
h) Nothing in this clause affects any of your rights to reject Artworks other than in accordance with your right to cancel under this clause. If you wish to exercise a right to reject the Artworks, you must notify us and return the Artworks to us in accordance with clause 10 b).
If you have any questions or complaints about the Artworks or our services please email us at [email protected].
For consumers (in the European Economic Area): we advise you to first notify us of any complaints by contacting us at the email address above. If this does not resolve your complaint, you can submit your complaint for online resolution to the European Commission Online Dispute Resolution platform at http://ec.europa.eu/odr.
12. OUR LIABILITY
a) References to liability in this clause 12 include every kind of liability arising under or in connection with these Terms of Sale including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
b) No provision in these Terms of Sale shall be deemed to exclude or limit in any way the liability of either us or the Seller to you where it would be unlawful to do so. This includes liability for death or personal injury caused by the negligence or us or the Seller, the liability of us or the Seller for fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited under applicable law.
c) Subject to clause 12 b) the total liability of us and the Seller to you in connection with the sale of an Artwork shall be limited to the total amount actually paid by you for the Artwork.
d) Subject to clause 12 b), under no circumstances will either us or the Seller be liable to you for: (i) any loss of profits, sales, business, or revenue; (ii) loss or corruption of data, information or software; (iii) loss of business opportunity; (iv) loss of anticipated savings; (v) loss of goodwill; or (vi) any indirect or consequential loss.
e) All Artworks, information and services made available through the site are provided on an “as is” and “as available” basis. Neither us or the Seller are responsible for the correctness of any statement of whatever kind concerning any listing, whether written or oral, nor for any other errors or omissions in description or for any faults or defects in any listing.
f) Except for the warranties given by the Seller in clause 14, neither us or the Seller give any representation or warranty or assume any liability of any kind whatsoever, express or implied, in connection with these Terms of Sale, the site, our services or any Artworks including with regard to provenance, description, size, non-infringement, medium, value, condition, restorations, exhibitions, rarity, historical relevance or attribution, except to the extent such representations and warranties cannot be excluded under applicable law, and no statement anywhere whether oral or writing shall be deemed to be such a representation or warranty.
g) The laws of some countries do not allow some or all of the disclaimers, limitations or exclusions described above. This is especially so if you are a consumer. If these laws apply to you, some or all of the above disclaimers, limitations or exclusions may not apply to you and you might have additional rights.
h) Neither us or the Seller are responsible for any loss caused by or resulting from confiscation of a shipment of purchased Artworks to any foreign country or state or risks of restricted transportation by any government or authority.
i) We shall have the right, but not the obligation, to cancel a sale without notice to the buyer if we reasonably believe that there is a material breach of the Seller’s representations and warranties, or completing the sale is or may be unlawful or that the sale puts us or the Seller under any liability to any third party or may damage our reputation. Upon notice of our election to cancel the sale, you will promptly return the Artworks to us, and we will then refund the total amount paid by you to us in respect of the sale. The refund shall constitute your sole remedy and recourse against us and the Seller with respect to such cancelled sale.
13. PERSONAL INFORMATION
14. SELLER WARRANTIES: TITLE AND AUTHENTICITY
a) For each Seller Artwork, the Seller gives a warranty that the Seller:
i) is the owner of the Seller Artwork or a joint owner acting with the permission of the other co-owners or, if the Seller is not the owner or a joint owner, has the permission of the owner to sell the Seller Artwork, or the legal right to do so; and
ii) has the right to transfer ownership of and good title to the Seller Artwork to the buyer without any restrictions or claims by anyone else.
b) The Seller warrants, subject to the terms below, that for a period of 5 years from the date of a sale, a Seller Artwork which is stated without qualification in the listing on our site to be the work of a named artist or creator is authentic. For the purposes of this warranty ‘authentic’ shall mean that the work is a genuine work of a named artist or creator rather than a copy or forgery.
c) The authenticity warranty does not apply where:
i) the description or statement is stated to be qualified;
(ii) the description or statement was consistent with the generally accepted opinion of specialists, scholars or experts at the date of the sale or indicated that there was a conflict of opinion
(iii) the Seller Artwork can only be shown not to be authentic by a scientific process which was not generally accepted for use at the date of the sale or which was at such time unreasonably expensive or impractical to use , or which was likely to have caused damage or loss to the Seller Artwork;
(iv) there has been no material loss in value from the Seller Artwork had it been as described in the description on the site.
d) The Seller gives the warranties in this clause 14 only to the original buyer of a Seller Artwork on our site as shown on the invoice originally issued when the Seller Artwork was sold. Such original owner must still be the full owner at the date of any claim and the Seller Artwork must be free from any restrictions, claim or interest by anyone else. These warranties do not extend to subsequent owners of the Seller Artwork.
e) In order to claim under the authenticity warranty you must give written notice of a claim to us within 5 years from the date of the sale. You must specify in such notice the reasons why the authorship of the Seller Artwork is being questioned.
f) We shall notify the Seller of any claim under the warranties in this clause 14 and shall disclose to you the contact details of the Seller, provided that the Seller reserves the right to require you to first enter into direct undertakings with the Seller with regard to confidentiality.
g) With regard to any claim under the authenticity warranty, the Seller reserves the right to require you to obtain at your expense the written opinions of two recognized experts in the field of the Seller Artwork that is the subject of the claim, mutually acceptable to the Seller and to you. The Seller reserves the right to consult its own experts at its expense.
h) You must return the Seller Artwork which is the subject of any claim at your expense to the Seller in the condition it was in at the time of the sale.
i) Any dispute arising out of or in connection with the warranties in this clause 14 shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English.
j) The warranties contained in this clause 14 are from the Seller and we do not have any liability to you in relation to these warranties.
15. FINAL PROVISIONS
a) We amend these Terms of Sale from time to time. Every time you wish to use our site, please check these Terms of Sale to ensure you understand the terms that apply at that time.
b) We may transfer any of our rights and obligations under this agreement to another organisation. You may only transfer your rights or obligations under this agreement if we agree to this in writing.
c) Each of the paragraphs of these Terms of Sale operates separately. If any part of these Terms of Sale is disallowed or found to be ineffective by any court or regulator, the other provisions shall continue to apply.
d) If you breach these Terms of Sale and we take no action against you, we will still be entitled to use our rights and remedies in any other situation where you breach these Terms of Sale. The rights and remedies in these Terms of Sale are cumulative and are not exclusive of any rights or remedies provided by law.
d) This agreement is between you and us. No other person shall have any rights to enforce any of its terms.
e) These Terms of Sale and their subject matter and formation (and any non-contractual disputes or claims) shall be governed by the laws of England and Wales. Any disputes relating to the Terms of Sale shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
f) Subject to clause 14 i) any disputes relating to these Terms of Sale shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
MODEL CANCELLATION FORM
(Complete and return this form only if you wish to withdraw from the contract)
To [TRADER’S NAME, ADDRESS, TELEPHONE NUMBER AND, WHERE AVAILABLE, FAX NUMBER AND E-MAIL ADDRESS TO BE INSERTED BY THE TRADER]
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following Artworks [*]/for 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),