Osch - David vs Goliath

1. Artist Resale Rights (ARR)

1.1 The Artist's Resale Right means that artists could be entitled to a royalty each time their work is resold with the involvement of an auction house, gallery or dealer for €1,000 or more.
As of 1 January 2012, the Right in the UK was extended to cover sales of work by deceased artists still in copyright, which means that beneficiaries and heirs can also benefit. In the UK, copyright lasts for the lifetime of the artist plus 70 years after their death, to the end of that calendar year.
This is the most significant new right for visual artists and their heirs in recent times, giving them an ongoing stake in the value of the artist's work.

The Artist’s Resale Right continues to apply following the UK’s departure from the European Union. The government has reviewed Artist's Resale Right legislation to ensure that it remains effective from 1 January 2021, and it has been provided for in the EU-UK Trade and Co-Operation Agreement. The Artist’s Resale Right will therefore continue to apply to sales taking place in the UK.

1.2 The Artist's Resale Right Regulations 2006 (the Regulations) state that principally the art market professional and the seller of the artwork are “jointly and severally liable” for the payment of the royalty. The artist and any subsequent beneficiaries cannot opt out of receiving a royalty or assign the Right to anyone else during their lifetime (with the exception of charities).
An "art market professional" is defined as someone "acting in the course of a business of dealing in works of art”. In practice this includes galleries, dealers, auction houses and agents, but excludes in general museums and private individuals.

1.3 The artist’s royalty depends on the resale price. The higher the sale price of the artwork, the lower the overall royalty rate.
The royalty is worked out according to a sliding scale from 4% to 0.25%.
Calculation of royalties ARR derives from a European Directive and came into force in the UK in 2006. The right only applies when the sale price reaches or exceeds the sterling equivalent of €1,000 and is calculated on a sliding scale. Royalties are calculated on the sale price minus VAT for galleries and the hammer price, (sale price minus VAT and Buyers Premium) for auction houses. The maximum an artist or their beneficiary can receive is capped at €12,500 for one sale of one work, which is reached by works sold for €2 million or more.

Please note: this scale is cumulative, which means that where the sale price is higher than the first threshold, the royalty on each portion of the price must be calculated accordingly and added together to arrive at  the final sum.

Royalty	Resale price
4%	up to €50,000
3%	between €50,000.01 and €200,000
1%	between €200,000.01 and €350,000
0.5%	between €350,000.01 and €500,000
0.25%	in excess of €500,000

 

2. Authority to purchase

2.1 If you are a consumer, you may only purchase Artwork through the Website if you are at least 18 years old.

2.2 If you are a business customer, by placing an order through the Website you confirm that you have authority to bind any business on behalf of whom you are purchasing Artwork via the Website. 

3. Ordering Artwork via the Website

3.1 If you are a new user of the Website then you will have to register and create an account before you can place an order for any Artwork. We will use your information in accordance with our Privacy Policy. Once you have created your account you will be emailed confirmation of your username and you can then log in and place your order. You do not need to register an account just to browse the Website.

3.2 The Website will guide you through the steps that you need to take to place an order for Artwork. You should check your order and amend any errors before submitting it. It is your responsibility to ensure that the information that you provide to us is correct. If we have to contact you for any reason we will do this via the email address you provide when registering.

3.3 You will receive an automated email following the submission of your order to acknowledge that we have received your order. However, this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.6.

3.4 We may reject any orders at our discretion and without explanation. Acceptance and fulfilment of orders will be subject to availability. You acknowledge and accept that some Artwork is unique or there may be limited availability. We will not be liable to you if the Artwork that you wish to order is unavailable for any reason.

3.5 If you order a print, we cannot guarantee, unless explicitly stated and confirmed by us in writing, that you will receive a particular number in the series.

3.6 If we accept your order we will confirm our acceptance by sending you a separate confirmation email ("Order Confirmation"). The Contract between us will only be formed when we send you the Order Confirmation.

3.7 If we are unable to supply you with the Artwork that you have ordered for any reason we will inform by email and we will not process your order. If you have already paid for the Artwork, we will refund you the full amount including any delivery costs charged as soon as reasonably possible.

3.8 If you have ordered more than one item of Artwork we may deliver these to you separately.

4. The Artwork

4.1 The images of the Artwork on the Website are for illustrative purposes only. Although we have tried to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Artwork and we are not liable for any such non-conformity.

4.2 You are purchasing the physical Artwork only and this does not give you any rights under copyright or related rights and these must be negotiated separately with the relevant owner of the intellectual property rights in the Artwork.

5. Cancelling your order if you are a consumer

This clause 5 applies if you are a consumer but not if you are a business customer.

5.1 If you are a consumer, you have a legal right to cancel a Contract during the period set out below in clause 5.2. This means that during the relevant period if you change your mind or decide for any other reason that you do not want to receive or keep the Artwork that you have ordered, you can notify us of your decision to cancel the Contract and receive a refund. However, this right to cancel does not apply to any Artwork which is an audio or visual recording and which has been unsealed by or on your behalf following delivery or to any Artwork which has been made or customised to your specification (including, but not limited to, framing) where you have given us consent to commence such making or customisation.

5.2 If you have ordered a single Artwork or multiple Artworks which are delivered on the same day, your legal right to cancel a Contract starts on the date of the Order Confirmation and finishes at the end of 14 days after the day on which the Artwork is delivered to you. If you have ordered multiple Artworks which are delivered on separate days, your legal right to cancel a Contract starts on the date of the Order Confirmation and finishes at the end of 14 days after the day on which the last of the separate Artworks is delivered and you can cancel the Contract for all or any one or more of the separate Artworks at any time during this period.

5.3 If you wish to cancel the Contract within the time periods set out in clause 5.2 you must let us know by emailing us at art@graffikgallery.co.uk or calling us on +44 (0) 208 354 3592. If you are emailing us to cancel your Contract please include your order number, name, delivery address and Artwork reference number to help us identify you. If you email your cancellation it will be effective from the date you sent us the email to the address set out in this clause.

5.4 If you cancel your Contract we will (a) refund you the price you paid for the Artwork. However, we are permitted by law to reduce your refund to reflect any reduction in the value of the Artwork, if this has been caused by your handling them in a way which would not be permitted in a shop; and (b) refund any delivery costs that you have paid. However, the maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method that we offer (provided that this is a common and generally acceptable method).

5.5 If the Artwork has been delivered to you at the time of your cancellation, you must return the Artwork to us without undue delay to 284 Portobello Road, London W10 5TEand we will then make the refund within 14 days after the earlier of (a) the day on which we receive the Artwork or, (b) the day on which you provide us with evidence that you have sent the Artwork back to us. If you have not received the Artwork at the time of your cancellation, we will make the refund within 14 days after you inform us of your decision to cancel the Contract.

5.6 We will refund you on the credit card or debit card used by you to pay.

5.7 Unless the Artwork is damaged or not as described you will be responsible for the cost of returning the Artwork to us.

5.8 In addition to the other rights to cancel the Contract under this clause 5, you may also cancel the Contract and return the Artwork to us if it is faulty or not as described in which case you must return the Artwork to us promptly and we will refund the price of the Artwork in full, together with any applicable delivery charges, and any reasonable costs you incur in returning the item to us unless the fault or mis-description is as a result of anything listed in clause 10.1.

6. Availability and delivery

6.1 If the Artwork that you have ordered is on display in an exhibition at the time of your order, we will deliver the Artwork to you within 45 days of the conclusion of the exhibition unless otherwise agreed between us in writing. In all other instances we will use reasonable commercial endeavours to ensure that your order is fulfilled within 30 days from the Order Confirmation or such other delivery date as stated in your Order Confirmation. Please be aware that if the Artwork is being delivered outside mainland England then delivery may take longer.

6.2 Delivery of an order will be completed when we deliver the Artwork to the address you specified for delivery with your order.

6.3 This clause 6.3 only applies if you are a consumer. If you are a consumer and we do not deliver your order by the agreed delivery date then you may cancel your order immediately by notifying us by email or telephone. Alternatively, you may give us a new deadline for delivery, which must be reasonable, and you can cancel your order if we do not meet the new deadline. If you do choose to cancel your order for late delivery under this clause, you can do so for all Artwork ordered or just one or more pieces. If the Artwork has been delivered to you, you must return the Artwork to us. We will pay the reasonable costs of returning the Artwork and we will then refund any sums you have paid to us for the cancelled Artwork and their delivery within a reasonable period.

7. Risk and title

7.1 The Artwork will be your responsibility from the time of delivery at the address provided by you when ordering. Our delivery costs include insurance up to the price paid by you for the Artwork. If any damage or non-conformity is apparent when the order is delivered, please reject the order.

7.2 Ownership of the Artwork will only pass to you when we receive full payment of all sums due in respect of the Artwork, including any delivery charges.

8. Price and payment

8.1 The price of the Artwork and our delivery charges will be as quoted on the Website from time to time, except in cases of obvious error.

8.2 Prices include VAT. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT that you pay, unless you have already paid for the Artwork in full before the change in VAT takes effect.

8.3 Prices and delivery charges are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation.

8.4 The Website contains a large number of Artworks and it is always possible that, despite our best efforts, some of the Artwork displayed on our online gallery or store may be incorrectly priced. We will normally verify prices as part of our dispatch procedures and where an Artwork's correct price is less than our stated price, we will charge the lower amount when dispatching the Artwork to you. If an Artwork's correct price is higher than the price stated on the Website, we will normally, at our discretion, either contact you for instructions before dispatching the Artwork, or reject your order and notify you that we are rejecting it.

8.5 If the pricing error is obvious and unmistakeable and could have reasonably recognised by you as an error, we do not have to provide the Artwork to you at the incorrect (lower) price. Graffik Gallery can cancel orders and refund customers because of obvious pricing errors.

8.6 We accept payment with most credit and debit cards.

8.7 Payment for the full price plus applicable delivery charges will be taken from your credit or debit card and cleared before we dispatch the Artwork to you. We, or carefully selected third parties on our behalf, will carry out checks and/or authorisations on with your card issues for security reasons and we may contact you if any problems arise.

8.8 We will provide you with a receipted invoice by email once your Artwork is dispatched.

9. Warranty

9.1 We warrant that on delivery and for the period of 12 months the Artwork, if new, will be free from material defects in the materials used to create it. If previously owned, we warrant that we have stored it appropriately and that its condition is as described on the Website. However, these warranties shall not apply to any defect in the Artwork arising from (a) fair wear and tear; (b) wilful damage, abnormal storage display or working conditions, accident, negligence by you or by any third party; (c) any alteration or repair by you or by a third party; or (d) any specification provided by you.

9.2 The foregoing warranties do not affect your statutory rights as a consumer, if any. All other warranties, express or implied, are hereby excluded to the maximum extent permitted by applicable law.

10. Our liability

10.1 Subject to clause 10.3, our maximum aggregate liability to you under a Contract is a sum equal to the price paid by you for the Artwork under the affected Contract.

10.2 We shall have no liability for any loss of profits or loss of appreciation in price, anticipated savings, business opportunity, goodwill or loss of or damage to (including corruption) of data (whether direct or indirect) or any indirect or consequential losses whether the arising in contract, tort (including negligence) or otherwise incurred by any user in connection with the Artwork or Website or in connection with the use, inability to use, or results of the use of the Artwork or Website, any websites linked to it and any materials posted on it.

10.3 Nothing in these terms and conditions shall limit or exclude any liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation or for any other liability which cannot be properly excluded under English law.

11. Import duty

11.1 If you order Artwork from the Website for delivery outside the United Kingdom, it may be subject to import duties and taxes which are levied when the Artwork reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.

11.2 Please also note that you must comply with all applicable laws and regulations of the country for which the products are destined. We will not be liable for any breach by you of any such laws.

12. Notices

All notices given by you to us must be given to Graffik Gallery Limited at art@graffikgallery.co.uk. We may give notice to you at the email or postal address that you provide to us when placing an order and notice will be deemed received and properly served immediately after sending where sent by email (provided no automatic delivery failure notification is returned) or three days after the date of posting of any letter by first class pre-paid post.

13. Transfer of rights and obligations

13.1 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.

13.2 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.

14. Force Majeure

14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by a Force Majeure Event.

14.2 A Force Majeure Event means acts, events, omissions or accidents beyond our reasonable control, including but not limited to acts of God, extreme adverse weather conditions or natural disaster, war, threat of or preparation for war, terrorist attack, riots, compliance with any law, regulation or directive, failure of machinery, computers or vehicles, any labour dispute, non-performance by suppliers or subcontractors and interruption or failure of utility or transport service.

15. Waiver

15.1 A waiver of any right or remedy under this Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

15.2 No single or partial exercise of any right or remedy provided under this Contract or by law shall preclude or restrict the further exercise of any such right or remedy.

16. Severability

If any court or competent authority decides that any provision of these Contracts is invalid, unlawful or unenforceable that provision shall be deemed deleted and the remaining provisions will continue in full force and effect.

17. Entire agreement

17.1 Your accepted order for Artwork, the Order Confirmation and these terms and conditions and any documents referred to herein constitute the entire agreement between the parties and supersede all previous drafts, arrangements, understandings or agreements between them, whether written or oral, relating to the subject matter of this agreement.

17.2 Each party acknowledges that, in entering into a Contract, it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in that Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in these terms and conditions (whether made innocently or negligently) shall be for breach of contract.

17.3 Nothing in this clause shall limit or exclude any liability for fraud.

18. Variation

18.1 We have the right to revise and amend these terms and conditions from time to time. You will be subject to the policies and terms and conditions in force at the time that you order Artwork from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Order Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless cancel the order in accordance clause 5 or 6).

19. Law and jurisdiction

This Contract is made in accordance with the laws of England and Wales and we each agree to the non exclusive jurisdiction of the Courts of England.

20. Third party rights

A person who is not party to these terms and conditions or a Contract shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.