CONDITIONS OF BUSINESS
Dated March 2014/ Updated 21 October 2015 (5.1.5. Bidding Increments) / Updated 25 April 2016 (7.2. Buyer's Premium) / Revised 31 July 2019
These Conditions of Business govern the relationship between Bidders and Buyers, Sellers and the Auctioneer.
Bidders and Buyers should read these Conditions of Business carefully before bidding on a Lot or agreeing to buy a Lot.
In these Conditions of Business, the following terms shall have the following meaning:
“Auctioneer” means Lavacow;
“Bidder” means a person considering, making or attempting to make a bid, by whatever means;
“Business Day” means any day which is not a Saturday, a Sunday or a public holiday on which banks are ordinarily open for business in Bucharest;
“Buyer” means the person who makes the highest bid or offer accepted by the Auctioneer or buys a Lot by way of buy out option or post-auction sale;
“Buyer’s Premium” means the commission payable by the Buyer on the Hammer Price at the rate(s) listed on the Site at the time of the sale;
"Current price" means the price reached for a Lot in the bidding process at a specific moment in time when bidding is still open for that Lot;
“Hammer Price” means the highest bid accepted by the Auctioneer for a Lot, or the buy out bid placed by the Buyer who exercises such option at the buy out specified value, or in the case of a post-auction sale, the agreed sale price of the Lot;
“Lavacow” means Lava Cow S.R.L. trading as Lavacow; for the avoidance of doubt, Lavacow is an online art auction house where the bidding is an entirely online process;
“Lot” means a single item of Property or the lot in which Property is grouped by Lavacow;
“Pre-sale Estimate” means the pre-sale auction estimate specified, from time to time, for a Lot, which can be either a fixed value or a value interval. Estimates do not include the buyer’s premium, sales taxes or shipping charges including export or import licenses;;
“Property” means an item of property listed for sale;
“Purchase Price” (also “Total Sales Tax”) means jointly the Hammer Price plus the Buyer’s Premium, any VAT, the shipping expenses, and any other applicable fees or taxes applicable to the sale;
“Resale Royalty” means the artist’s resale royalty eventually payable in Romania or other EU countries under local laws and European legislation, and is to be computed and withheld by Lavacow, in case of sale, from the Hammer Price owed to the Seller; Lavacow will further pay the royalty to the appropriate authority on the Seller’s behalf;
“Seller” means the owner(s) of the Property (i.e. artists and collectors) and any party or parties acting as agent for the owner(s) using Lavacow for the sale of the Property (i.e. art galleries, art dealers or other representatives);
“Seller’s Commission” is the commission payable to Lavacow by a Seller at the date of sale of the Property at the rate(s) set out in the Sale Agreement;
“VAT” means Value Added Tax, Import Value Added Tax, any similar sales tax or an amount in lieu of Value Added Tax, as applicable, calculated at the rate applicable at the time of the sale;
“Withdrawal Fee” means the fee charged by Lavacow to the Seller if Property is withdrawn from sale.
1. The Conditions of Business
Each Lot is offered for sale and sold subject to these Conditions of Business. By bidding at the auction, Bidders and Buyers agree to be bound by these Conditions of Business. These Conditions of Business contain all the terms on which Lavacow and the Sellers contract with Bidders and Buyers.
2. Lavacow as Agent
Lavacow acts as agent for the Seller. Occasionally, Lavacow may own a Lot (and in such circumstances, acts in a principal capacity as Seller) or may have a legal, beneficial or financial interest in a Lot as a secured creditor or otherwise. Unless Lavacow owns a Lot offered for sale, it is not responsible for any breach of these Conditions of Business by the Seller.
3. Description of Lots and Due Diligence by Bidders and Buyers prior to the Auction
3.1. Bidders and Buyers acknowledge that the age, authenticity, genuineness, attribution, origin, condition, importance, quality, rarity, value, historical significance and period are matters of opinion and not of fact.
3.2. Lavacow shall exercise reasonable care when reviewing the Seller’s description of Lots and condition reports in a manner consistent with its role as auctioneer of a large number of lots and subject to the risks inherent to describing unique works of art and collectable items without having always had the opportunity for all Lots to inspect the Lot before the bidding.
3.3. Lavacow is not able to carry out exhaustive due diligence on each item of Property. Most lots offered for sale shall not be available for inspection prior to the auction and Bidders and Buyers are invited to carry out, and shall be responsible for carrying out, their own due diligence over Lots offered for sale, including with the help of their specialized consultants or by asking Lavacow for a condition report.
3.4. Bidders and Buyers acknowledge and agree that:
(a) The description of Lots by Lavacow is partly dependent upon the information provided by the Seller and experts Lavacow may consult, the amount of research and any examination or testing Lavacow may reasonably and practically carry out prior to an auction, and the generally accepted opinion of experts available at the time of cataloguing the Lot;
(b) Some Lots may be of an age and type which means that they are not in perfect condition. The absence to any reference to the condition of a Lot does not imply that the Lot is free from faults, imperfections and restorations;
(c) For the avoidance of doubt, Lavacow accepts bids based upon the information provided by the Seller without having always had the opportunity to inspect the Lot prior to bidding and satisfy itself as to the Lot, its description, age, authenticity, genuineness, attribution, provenance, origin, condition, importance, size, quality, quantity, rarity, value, historical reference or significance, medium, material, period, culture and source;
(d) Lots are offered for sale and sold “AS-IS”; information concerning the characteristics of the Property is offered by Lavacow as a statement of opinion only and Lavacow does not accept any responsibility towards Bidders or Buyers for any such statement of opinion;
(e) Lavacow makes no representation or warranty, orally or in writing, express or implied (other than those which cannot be excluded by law) with respect to the characteristics of any Lot, including (without limitation): age, authenticity, genuineness, attribution, provenance, origin, condition, importance, size, quality, quantity, rarity, value, historical reference or significance, medium, material, period, culture or source;
(f) Pre-sale estimates provided by Lavacow from time to time are not representations of fact but are merely an opinion offered by Lavacow as a guide to the price that a willing Buyer might pay for the Lot being offered at auction. The actual price achieved at auction or upon resale of the Lot may be substantially different from these estimates. Lavacow shall not be liable for any difference between any pre-sale estimate and the actual price obtained for a Lot at auction or upon resale;
(g) All size and weights are approximate, whether or not qualified by the terms “stated to be” or “approximately”;
(h) Illustrations are for identification purposes only; they are rarely exact and cannot be used as precise indications of size or to convey full information as to the condition of Lots.
4. Sale Contract
4.1. Lots shall be sold to the highest Bidder, or to the Buyer who exercises the buy out option, when such exists. The contract of sale for the Lot between Lavacow acting as agent of the Seller and the Buyer shall be made when Lavacow announces that the Lot has been sold.
4.2 If the Buyer acts as agent, unless otherwise agreed in writing by Lavacow, the Buyer and his principal shall be jointly and severally liable to the Seller and Lavacow under these Conditions of Business.
5. Conduct of the Auction
5.1. Bidders & Buyers
5.1.1. Lavacow has the right to decline to register a Bidder and to allow participation in any of its auctions.
5.1.2. Lavacow reserves the right to request Bidders to submit identification, a bank guarantee, advance payment or a financial reference in order to qualify to bid.
5.1.3. Lavacow has the right to (a) divide any Lot; (b) combine two or more Lots; (c) withdraw any Lots; (d) refuse bids; (e) refuse to acknowledge any Bidder; (f) challenge bids; and (g) otherwise regulate the bidding.
5.1.4. The calling and sale price are told in euro.
5.1.5. Lavacow will generally commence the bidding at a starting price which may represent, in principle, about 25-100% of the market estimates, and proceed at increments determined by Lavacow at its sole discretion.
Bidding generally advances according to the increments set below, however, the final increments are subject to the auctioneer’s discretion.
For prices between 0 and 199 euro the bidding increment is 25 euro.
For prices between 200 and 499 euro the bidding increment is 50 euro.
For prices between 500 and 999 euro the bidding increment is 100 euro.
For prices between 1000 and 1999 euro the bidding increment is 200 euro.
For prices between 2000 and 4999 euro the bidding increment is 250 euro.
For prices between 5000 and 9999 euro the bidding increment is 500 euro.
For prices between 10000 and 19999 euro the bidding increment is 1000 euro.
For prices between 20000 and 29999 euro the bidding increment is 2000 euro.
For prices between 30000 and 49999 euro the bidding increment is 2500 euro.
For prices between 50000 and 99999 euro the bidding increment is 5000 euro.
For prices between 100000 and 199000 euro the bidding increment is 10000 euro.
For prices higher than 200000 euro the bidding increment is 20000 euro.
5.1.6. If a dispute arises at or immediately after the Auctioneer announces that a Lot has been sold or unsold, the Auctioneer may a) validate the adjudication, b) re-allot the lot to a counter-Bidder, c) re-offer the Lot for sale, as it deems appropriate in its absolute discretion.
5.2. Depositors and Sellers
5.2.1. The depositor shall propose the Lot to the Auctioneer by sending an e-mail at firstname.lastname@example.org. The proposal shall first be submitted at the specified e-mail address and if it passes Lavacow’s preliminary selection, the Depositor will be invited to access the Lavacow online consignment platform (part of the Lavacow Site), create an account and fill in a registration form providing relevant information regarding the Property in a truthful and accurate manner.
5.2.2. This shall encompass text descriptions, images and pictures of each item of Property including, without limitation, its physical condition (otherwise known as a condition report), age, provenance, and any other relevant data. All damage to Property must be photographed and clearly presented on the Site. Additionally, the information presented in the listing cannot be misleading, either through the inclusion of actual information provided or by the omission of information.
5.2.3. Should the artist of the Lot not be already registered in the Site’s database, the Depositor shall register relevant information regarding the new artist. All data introduced by the Depositor shall be validated by the Lavacow Specialist prior to it being published.
5.2.4. Lavacow reserves the right to amend the information and descriptions provided by the Depositor (including the title of the Property), as well as any adjacent technical data, if deemed necessary.
5.2.5. After submitting and proposing the Property, the proposal will be found in the Consignment Proposals Summary section of the Site with the status „Submitted”. Upon its review Lavacow will change its status into „Sale Terms Confirmation Pending”. When the Depositor agrees with the present terms and conditions, including the starting price, pre-sale estimate (if the case) and consignment period, the proposal status will change to „Approved”.
5.2.6. As soon as Lavacow accepts the Depositor’s proposal and the Seller consents to the Terms of Sale, the Seller is forbidden to offer the Property for sale outside the Site. Any initiative of the Seller to offer the Property for sale outside the Site shall be suspended until expiry of the consignment agreement.
5.2.7. Should the Property be marked as sold on the Site at the end of the auction - upon receipt of Lavacow’s instructions in this respect - the Seller shall be ready to immediately deliver the Property to the address indicated by Lavacow.
5.2.8. Should the Seller decide to unilaterally withdraw the Property from the Site after the proposal status changed to „Approved”, will entitle Lavacow to request the Seller the payment of the Withdrawal Fee equal to the sum of the Seller’s and the Buyer’s Premium according to the maximum of the pre-sale estimate or, if the case, 150% of the starting price, whichever the higher, as penalty for breach of the present Terms of Business of the Lavacow Site.
5.2.9. The Seller understands the requirements for proper delivery of artwork and undertakes to (a) safely pack, handle and deliver the Lot to the Carrier as instructed by Lavacow and (b) to take pictures of the Lot right before packing it in order to prove the Lot was in perfect condition before it was handed over to the Carrier.
5.2.10. Understanding its identity must never be disclosed during or after the bidding process, the Seller undertakes not to pack any material that may lead to its identification by the Buyer (referring herein to the Seller’s albums/ business cards as well as any other advertising material containing its identification data).
5.2.11. The Seller is aware it will receive the hammer price minus the Buyer’s Premium only after the Buyer confirms the safe delivery of the package. Lavacow takes no responsibility for the payment by the Seller of any applicable fees or taxes accountable to the Seller or Depositor.
5.2.12. Provided the Buyer confirms receipt of the package in perfect condition, Lavacow will make the payment to the Seller by means of bank transfer in the account indicated by the Seller, within 10 (ten) Business Days from receipt of the Buyer’s confirmation regarding the package’s safe delivery.
5.2.13. Should the issuance of licenses/permits or authorizations be required for the export of the Lot, the Seller undertakes to offer Lavacow, acting as agent to the Buyer, all the necessary support for the issuance of such licenses/permits or authorizations by the relevant authorities.
5.2.14. Lavacow reserves the right to publish images and descriptions of the art items which it put to auction, in any materials (documentary, journalistic, scientific or for promotional purposes).
5.2.15. The Seller shall preserve the confidentiality of all terms and conditions agreed upon during the negotiation process with the Auctioneer.
6. Bidder Registration
6.1. Site visitors who want to enter and follow the online live auction have to register on the Site. All Bidders must register on the Site prior to bidding. In order to register for an auction the Bidder will first need to create an account using an e-mail address and a password and to provide all required Auction Settings information and/or to fill in any necessary forms.
6.2. When making a bid or exercising the buy out option, a Bidder accepts personal liability to pay the Purchase Price (which includes the Buyer’s Premium, shipping costs and all applicable taxes and charges), unless it has been explicitly agreed in writing with Lavacow before the start of the auction that the Bidder is acting as agent on behalf of an identified third party acceptable to Lavacow, and that Lavacow will only look to the principal for such payment. In either situation, Lavacow may require the Bidder to provide certain documents or meet certain qualifications as set forth below.
6.3. As a convenience to Bidders who cannot participate in the auction, Lavacow may execute absentee bids on a Bidder’s behalf. Absentee Bidders are required to submit bids on the Lavacow Site. The Bidder must clearly indicate the maximum amount he intends to bid, excluding the Buyer’s Premium. Lots are sold to Absentee Bidders at the lowest possible price permitted against other Bidders. If two or more Bidders submit identical absentee bids for a Lot, the first absentee bid received takes precedence. General order of priority is: absentee bids submitted on the Lavacow Site, then the offers made during the live auction
6.4. Should a Bidder wish to make an absentee bid, the Bidder shall do so by entering the amount in the box pre-designed on the Site next to every Lot. Bids can be placed provided you are logged into an active account with the permission to bid. The starting price will be shown only once a bid is placed. The absentee bids shall be validated provided they are at least equal to the Starting price if there is no other bid for the Lot and at least equal to the Current price if there is another bid for the Lot. In case the Bidder places an invalid bid, the Bidder will receive an appropriate error message. Lavacow reserves the right to publish on the Site the Current price for a Lot together with the bidding history which includes the public profile of the Bidders (alias, avatar, paddle number and country of origin).
6.5. All absentee bids are legally binding.
6.6. Offers made during the live auction are legally binding. Failure to observe the payment obligation of the winning Bidder will be deemed as breach of the present Terms of Business of the Lavacow Site, will cause Lavacow an adverse impact on its business and hence entitle us to request the winning Bidder the Withdrawal Fee.
6.7. If a Lot goes unsold, participants can choose to recall the Lot during the time of the auction. By recalling a Lot, the Bidder agrees that an Offer for the Starting Price of the Lot be executed on his behalf.
6.8. For the avoidance of doubt the Auctioneer wishes to preserve the anonymity of the Bidders. The auction aliases chosen by the Bidders for themselves (should they wish to choose one) and their designated auction number are solely meant to facilitate the communication during the live auction. Lavacow reserves the right to display the countries of origin of the Bidders.
6.9. Lavacow will not be responsible for errors and omissions to execute bids placed on-line, including without limitation, errors or omissions caused by (i) a loss or failure of internet connection; (ii) a breakdown or interruption of the on-line bidding system or (iii) a breakdown or failure of any computer or IT system.
7. After Sale
7.1. Successful bids: Unless Lavacow decides to use its discretion as set out in paragraph 5.1.3. or 5.1.6., the highest bid when the auction closes or the exercise of the buy out option will conclude the sale, meaning a sale contract was formed between the Seller and the successful Bidder. Winning or buy out Bidders will receive an e-mail notification. Bidders are also requested to log in as soon as possible after the sale to obtain details of the outcome of any successful bid by checking “Adjudicated Lots” under "My Lavacow". Bidders are requested to provide details on delivery and payment options, no later than maximum 2 working days after the sale.
7.2. Buyer’s Premium: In addition to the final bid price (the “Hammer Price”), the Buyer agrees to pay to Lavacow the Buyer’s Premium. The Buyer’s Premium represents 18% of the hammer price. The Buyer’s Premium includes 19% non-refundable VAT. Lavacow members benefit of a reduction of the tax to 17% in the case of „Collector” members and to 16% in the case of „VIP” members. In the case of decorative art and jewellery containing gems, Lavacow applies an additional tax of gemological certification of 0.5%. In the case of fine art Lavacow applies an additional art stamp tax of 0.5%.
7.3. The Buyer agrees to additionally pay any shipping expenses, import VAT and taxes, and any other fees or taxes applicable to the sale (the “Total Sales Tax”).
7.4. The terms of sale are Delivered Duty Unpaid (DDU). It is the Buyer’s responsibility to ascertain and pay all international duties, customs charges, taxes and tariffs owed to the appropriate government entity or to be paid prior to shipment and/or delivery.
7.5. Artist’s Resale Royalty: In certain countries, local laws entitle the artist or the artist’s estate to a royalty known as ‘artist’s resale right’ when any lot created by the artist is resold. These lots are marked with the symbol R in the lot description. If these laws apply to a lot, the royalty will be withheld from the Hammer Price owed to the Seller and Lavacow pay the royalty to the appropriate authority.
The artist’s royalty applies if the sale price of the lot is more than 300 euro and the total charge for any lot cannot be more than 12,500 euro. Artist’s Resale Royalty is calculated as follows:
Royalty as a % of the portion of the sale price (in euro)
5% up to 3,000
4% between 3,000.01 and 50,000
3% between 50,000.01 and 200,000
1% between 200,000.01 and 350,000
0.50% between 350,000.01 and 500,000
over 500,000, the royalty is 0.25% but maximum 12,500 euro.
7.6. Lavacow issues a sale certificate, the accompanying document imposed to all cultural operators by the Government Decision no. 1420/2003 for the approval of the Norms regarding the trade of movable cultural goods.
8. Bonus Recommendation
8.1. Buyers will receive a bonus in the amount of 1 (one) % from their Buyer’s Premium for recommending art lovers and bidders which are not yet registered with the Site. The bonus will be awarded to the recommender Bidder only after the recommendee registers and bids.
8.2. For the avoidance of doubt, Bidders and Buyers will not receive a bonus for recommending an already existing client of Lavacow.
8.3. A recommendation will contain the e-mail address of the recommended person, which will be used to activate an account for the recommended Bidder.
8.4. Bonuses accumulate and may be used totally or partially in one or in different auctions at the recommending Buyers’ discretion, except for the ones already passed when making the recommendations. For the avoidance of doubt, bonus points may not be used all at once if their value exceeds the entire value of the Buyer’s Premium in one auction. If such should be the case, bonus points will be stored by the Auctioneer and used by the Buyer at the future purchases.
9.1. Buyers are required to pay for purchases within 5 (five) Business Days following the auction.
9.2. Payments shall be made in Euro by wire transfer. Payments by wire transfer may be sent directly to Lavacow (Account holder Lava Cow SRL, RO76UGBI0000822002365RON(RON), RO69UGBI0000822002366EUR(EUR), RO66UGBI0000822002367USD(USD), Garanti Bank). The Buyer will ensure the payment details include (i) the reference number of the auction and (ii) the Lot number;
For Romanian residents payment shall be made in the local currency, RON, at the conventional NBR exchange rate EUR-RON from the date of the auction.
9.3. The Property shall be shipped to the Buyer within 10 (ten) working days from the date Lavacow received from the Buyer the total Sales Tax for the Lot in cleared funds, excluding days spent with customs, if the case, unless other arrangements are agreed with Lavacow in writing. Lavacow takes no responsibility for delays in shipping caused by the Seller, the Carrier, Custom Duties or any other third parties.
10.Ownership and Risk
10.1. The transfer of the ownership takes place at the moment of the transfer of possession of the adjudicated Lot from the Auctioneer or Seller to the Carrier provided Lavacow has received from the Buyer in cleared funds the full Purchase Price for the Lot.
10.2. Transportation of the Lot is under the Buyer’s risk. If the Lot rests with the Seller, it is the Seller’s duty to immediately deliver the Lot to the Carrier upon receipt of Lavacow’s instructions in this respect.
10.3. Lavacow will inform the Seller to release the Lot to be delivered to the Buyer only when the payment of the Purchase Price of the Lot has been received in full in cleared funds, and no other sums which are due by the Buyer to Lavacow are outstanding.
10.4. Collection of purchases other than by the Buyer must be carried out by a person specified on the written direction of the Buyer carrying official photo ID.
10.5. Should Lavacow provide the option and the Buyer express its desire to personally take-over the Lot, Lavacow will provide the Buyer with the address of the warehouse where the Auctioneer or Seller will ship the Lot. The Buyer will collect the package from the warehouse within 10 (ten) Business Days upon being informed the package reached the warehouse. At collection of the lots, the Buyer pays the rental fee for the deposit, which equals 10% of the adjudication price/ month pro-rated for each day in excess of 10 (ten) business days from the initial notification to pick up the Property. In case the Buyer does not collect the adjudicated lots in term of 6 months from the date of external depositing, Lavacow has the right to offer (once again) the work for sale to recover its transportation, depositary and whatever other adjacent costs. The Auctioneer shall be entitled to retain lots sold until all amounts due to Lavacow, or to any of its affiliates, subsidiaries or worldwide, have been received in full in good cleared funds or until the Buyer has satisfied such other terms as the Auctioneer, in its sole discretion, may require to its satisfaction, including, for the avoidance of doubt, completing any anti-money laundering or anti-terrorism financing checks. In the event a Buyer fails to complete any anti-money laundering or anti-terrorism financing checks to Lavacow’s satisfaction, the Auctioneer shall be entitled to cancel the sale.
10.6. If Lavacow is on notice of an actual or potential claim in respect of Property in its possession, Lavacow has the right not release the Property to the Buyer until it is jointly instructed by the Buyer and the claimant(s) or served with a binding Court order.
11. Transport and Shipping
11.1. Lavacow does not provide packing, handling or shipping services. However, Lavacow will coordinate with carriers in order to facilitate the shipping of Property bought through the Site.
11.2. Purchases will be shipped at the Buyer’s expense and pursuant to the delivery instructions the Buyer provided at time of payment. For this purpose, the Buyer will register relevant information regarding the delivery such as:
(a) final shipping destination;
(b) payment method;
(c) whether it opts for shipping insurance;
(d) data for the invoice issuance.
11.3. For Lots stored at Lavacow's office in Bucharest the Buyer can exercise the option to personally take-over the lot from the Lavacow office. For Lots that remain with the Seller prior to adjudication, the Seller will pay for the transport of the Lot to the Lavacow Office, whereas the Buyer will cover the expenses and taxes related to shipment of the Lot from the Lavacow Office to the destination indicated by the Buyer.
Lots stored at Lavacow’s Office in Bucharest are marked in the Lot page, under Additional Info, Notice to Buyers, as “Exhibited at the Lavacow office” or “Available for inspection at the Lavacow office on request only”.
11.4. For the avoidance of doubt, the Buyer will be responsible for any and all shipping expenses, including loss damage liability fees. Should the Buyer opt for shipping insurance the shipping agent will provide loss damage liability for purchased Lots to be shipped at a rate of 1% (one percent) of the Purchase Price. This will be charged at check-out and will cover loss, theft, damage or breakage.
11.5. The costs related to shipping, customs and insurance shall be paid for in advance by the Buyer before the package enters the Buyer’s country. Lavacow shall not under any circumstances be liable for acts or omissions of packers & handlers hired by the Buyer, carriers, or others (whether or not Lavacow has introduced them to the Buyer) even if their acts or omissions result in loss or damage to the Property.
11.6. If upon delivery of the package the Buyer finds significant discrepancies between the description of the Lot and/or the state of conservation on the Site and reality, the Buyer will notify the Auctioneer of its findings within 2 (two) Business Days from the delivery of the package. The notification will be directed to the address email@example.com.
12. Remedies for Non-Payment
12.1. Without prejudice to any rights the Seller may have, if the Buyer without prior agreement fails to make payment in cleared funds for a Lot within 5 (five) Business Days of the auction, Lavacow may in its sole discretion exercise one or more of the following remedies:
(a) cancel the sale of the Lot;
(b) reject future bids from the Buyer or render such bids subject to payment of a deposit;
(c) penalty of 1% per day of delay, from the date payment became due to the date the Purchase Price is received in cleared funds;
(d) resell the Lot by auction. In the event such resale is for less than the original Purchase Price, the Buyer will remain liable for the shortfall together with all costs incurred in such resale;
(e) commence legal proceedings to recover the Purchase Price, together with interest and the costs of such proceedings; or
(f) release the name and address of the Buyer to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs.
13. Rescission by Lavacow
Lavacow shall have the right, but not the obligation, to rescind a sale without notice to the Buyer, where Lavacow reasonably believes that there is a material breach of the Seller’s representations and warranties, or an adverse claim is made by a third party including but not limited to, someone claiming ownership of the Property or a foreign government or governmental agency. Upon notice by Lavacow of rescission of the sale, the Buyer will promptly return the Property to Lavacow. Lavacow will then refund the Hammer Price, Buyer’s Premium and any other fees and taxes on the Lot paid to Lavacow. The refund shall constitute the sole remedy and recourse of the Buyer against Lavacow and the Seller with respect to such claim.
14. Export and Import
Before bidding on any Lot, Bidders considering exportation and importation of Property should familiarise themselves with applicable export and import regulations of the countries concerned. It is solely the Buyer’s responsibility to comply with these laws and to obtain any necessary export, import licences and/or permits. Failure to obtain a licence or delay in so doing shall not constitute a basis to cancel a purchase or delay in making payment for a purchase.
15. Post-Auction Sales
15.1. These Conditions of Business shall apply to post-auction sales of Property by Lavacow. References to “auction” in these Conditions of Business shall be read as “post-auction sale” (where the context allows).
15.2. An unsold lot may be privately sold, in the following 10 days after the auction but prior to expiry of the consignment agreement, for a value equal to or higher than the minimum of the pre-sale estimate interval provided in the online auction catalogue, or higher than 125% of the provided starting price, when there is no pre-sale estimate interval in the auction catalogue, whichever the case.
16. Limitation of Liability
16.1. Lavacow and the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the sale of a Lot, shall be limited to the Purchase Price actually paid by the Buyer for the Lot.
16.2. NONE OF LAVACOW NOR THE SELLER SHALL BE LIABLE TO THE BUYER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES TO THE FULLEST EXTENT PERMITTED BY LAW.
16.3. No provision in these Conditions of Business shall be deemed to exclude or limit the liability of Lavacow to the Buyer in respect of any fraud or fraudulent misrepresentation made by them, caused by their negligent acts or omissions.
17. Use of Personal Information
17.1. Bidders and Buyers agree that Lavacow may process personal information that they submit to it including (a) name and contact details and the name and contact details of their employees, agents or representatives; (b) account and financial details; and (c) details of their use of auction and related services.
17.2 Lavacow may process personal information relating to Bidders and Buyers in connection with (a) the operation and enforcement of these Conditions of Business; (b) marketing our services to Bidders and Buyers from time to time; (c) record keeping; (d) tax and audit purposes; (e) conducting identity and credit checks on Bidders; (f) the transfer of its business to a purchaser of the business; (g) legal and regulatory matters; and (h) such other lawful purposes as may be notified to you from time to time.
17.3. Lavacow may disclose this personal information to (a) law enforcement agencies, courts and regulatory bodies; (b) professional advisors and other third parties engaged by it in connection with any of the activities specified in this Agreement; and (c) other parties as needed to assist Lavacow in recovering payment or otherwise enforcing a term or condition of this Agreement.
17.4. Nothing in this Paragraph is intended to prejudice any rights that Bidders or Buyers may have in relation to their personal information under applicable data protection law.
18.1. The rights, powers, privileges and remedies provided in these Conditions of Business are cumulative and are not exclusive of any rights, powers, privileges or remedies provided by law or otherwise.
18.2. No failure to exercise nor any delay in exercising by any party of any right, power, privilege or remedy under these Conditions of Business shall impair or operate as a waiver thereof in whole or in part.
18.3. No single or partial exercise of any right, power, privilege or remedy under these Conditions of Business shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.
18.4. Should any provision of these Conditions of Business be held void, invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect.
18.5. These Conditions of Business are not assignable by any Buyer without the prior written consent of Lavacow, but are binding on Buyer’s successors, assigns and representatives. Lavacow may assign these Conditions of Business without your consent to an affiliated company or a buyer of its business.
18.6. These Conditions of Business set out the entire agreement between Lavacow, Bidders and Buyers in respect of the transactions contemplated herein and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements between Lavacow, Bidders and/or Buyers relating to the subject matter of these Conditions of Business.
18.7. In the event that there are disparities between the online version of our auction rules and the one published in the printed catalogue, the online version, which is allegedly the latest, will prevail.
The copyright subsisting in all images and other materials produced for the auction is owned by Lavacow, and such images and materials may only be used at the discretion of Lavacow. For the avoidance of doubt, no rights in or title to the images and other materials produced for the auction shall be transferred to any third party by virtue of the sale of any Property to that third party, or otherwise howsoever.
Notices to Lavacow shall be in writing and addressed to the department in charge of the sale, quoting the reference number of the auction. Notices to clients of Lavacow shall be addressed to the last address notified by them in writing to Lavacow.
21. Dispute Resolution
21.1. These Conditions of Business and all aspects of all matters, transactions or disputes to which they relate or apply shall be governed by and interpreted in accordance with Romanian law.
21.2. In the event of a dispute arising under or in connection with these Conditions of Business, Bidders and Buyers irrevocably submit to the exclusive jurisdiction of the Romanian courts for the benefit of the Seller and Lavacow, and Bidders and Buyers agree that the Seller and Lavacow shall have the right to bring proceedings in any Courts in Romania and waive any objection to the jurisdiction of such Courts.
22. After-Sale Warranty
22.1. If Lavacow sells a Lot which subsequently is shown to be a “counterfeit”, subject to the terms below Lavacow will set aside the sale and refund the Buyer with the total amount paid by the Buyer to Lavacow for the Lot.
22.2. For these purposes, “counterfeit” means a Lot that in the reasonable opinion of Lavacow is an imitation created to deceive as to authorship, date, age, period, culture, where the correct description of such matters is not reflected by the description in the catalogue. No Lot shall be considered a counterfeit by reason only of any damage and/or restoration and/or modification work of any kind (including repainting or over-painting).
22.3. This warranty does not apply if either:
(a) the description of the Lot at the start of the auction was in accordance with the generally accepted opinion(s) of scholar(s) and expert(s) at the date of the auction, or the description indicated that there was a conflict of such opinions; or
(b) the only method of establishing at the date of the auction that the Lot was a counterfeit would have been by means of processes not then generally available or accepted, unreasonably expensive or impractical to use; or likely to have caused damage to the Lot or likely (in the reasonable opinion of Lavacow) to have caused loss of value to the Lot;
(c) there has been no material loss in value of the Lot from its value had it been in accordance with its description.
22.4. This warranty is provided indefinite after the date of the auction of the Lot, is solely for the benefit of the Buyer and may not be transferred to any third party. To be able to claim under this warranty, the Buyer must:
(a) notify Lavacow in writing within three (3) months of receiving any information that causes the Buyer to question the authenticity or attribution of the Lot, but not later than five (5) years since the auction date, specifying the lot number, date of the auction at which it was purchased and the reasons why it is thought to be counterfeit; and
(b) return the Lot to Lavacow in the same condition as at the date of sale to the Buyer and be able to transfer good title in the Lot, free from any third party claims arising after the date of the sale.
22.5. Lavacow may require the Buyer to obtain at the Buyer’s cost the reports of two independent, authorised and recognised experts in the field, mutually acceptable to Lavacow and the Buyer. Lavacow shall not be bound by any reports produced by the Buyer, and reserves the right to seek additional expert advice at its own expense. In the event that Lavacow decides to rescind the sale under this warranty, it will refund the Buyer the reasonable costs of up to two mutually approved independent expert reports.
22.6. Lavacow has discretion to waive any of the above requirements.
22.7. The Buyer understands and agrees that the exclusive remedy for any breach of this warranty shall be a rescission of the sale and a refund of the original Purchase Price paid. This remedy shall constitute the sole remedy and recourse of the Buyer against Lavacow and the Seller, and is in lieu of any other remedy available as a matter of law. This means that neither Lavacow nor the Seller shall be liable for loss or damage beyond the remedy expressly provided in this warranty, whether such loss or damage are characterized as direct, indirect, special, incidental or consequential.