6. Service Fees 6.1 Artmarketspace Fees
Except in the case of auctions, Artmarketspace charges a fee constituting 30% including GST of the Sale Price including GST (Fee) in consideration for the use of the Platform to Sellers and Buyers. For auctions, the following Artmarketspace fees (also Fees
) apply: Seller direct to consumer auctions
22% including GST of the Sale Price including GST on works sold under $20,000 11% including GST of the Sale Price including GST on works sold from $20,000 up to $99,999 5.5% including GST of the Sale Price including GST on works sold for $100,000 and over
3.3% including GST of the Sale Price including GST on works sold under $20,000 2.2% including GST of the Sale Price including GST on works sold from $20,000 up to $99,999 1.1% including GST of the Sale Price including GST on works sold for $100,000 and over Artmarketspace or Seller's Affiliate curated auctions
22% including GST of the Sale Price including GST on works sold under $60,000, 16.5% including GST of the Sale Price including GST on works sold from $60,000 up to $119,999, 11% including GST of the Sale Price including GST on works sold from $120,000 to $199,999 and 5.5% including GST of the Sale Price including GST on works sold for $200,000 and over
your own works you do not get charged any vendor commission and for your own
clients works you are free to charge what commission you wish to and this will
be refunded in full to you.
works that are referred to the affiliate by Artmarketspace in their scheduled
auctions the following commissions will be paid to the affiliate:
8.8% including GST of the Sale Price including GST on works sold
4.4% including GST of the Sale Price including GST on works sold
from $20,000 up to $99,999
2.2% including GST of the Sale Price including GST on works sold
for $100,000 and over
complete auctions referred to the affiliate by Artmarketspace, Artmarketspace
will pay the affiliate 4.4% including GST of the Sale Price including GST on
works sold up to $99,999 and then 2.2%
including GST of the Sale Price including GST on works sold for $100,000 and
vendor commission rates charged to the vendor are higher than the above, then
this will not affect what is paid to the affiliate and the above rates will
remain payable to the affiliate)
At the highest value level of $200,000 including GST where the buyer's premium reduces to the lowest level of any art auctioneer, 3.3% vendor's commission including GST will be paid to Artmarketspace for all art works sold over this amount. This will be deducted from the vendor's commission charged by the affiliate. 6.2 Change of Service Fees and Buyer's premium
Artmarketspace reserves the right to change the Fees including Buyer's premiums at any time, and we will provide Members adequate notice of any Fee changes before they become effective. 7. Payment Terms 7.1 Definitions
In this clause 7: “Adjusted Exchange Rate”
means the Base Exchange Rate plus a 3% fee charged by Artmarketspace for certain cross-border transactions. “Base Exchange Rate”
means a system-wide rate used by Artmarketspace if the Purchase Currency is different than the Listing Country Currency. It does not include any fee or mark-up by Artmarketspace. Artmarketspace establishes the Base Exchange Rate using data from one or more third parties such as OANDA (www.oanda.com)
. "Freight Fee"
means the applicable freight cost selected by the Buyer at the time of purchase. "Sale Price"
means the price listed for the purchase of the Artwork in a Listing, or the Hammer Price (as defined in the Auction Terms) in the case of the purchase of an Artwork by auction, and includes the Fee (except any applicable Buyer's premium) and excludes the Resale Royalty if payable by the Buyer. “Payout”
means a payment initiated by Artmarketspace to a Member for services (such as Sale Prices) performed in connection with the Platform. “Payout Method”
means a financial instrument that you have added to your Artmarketspace Account, such as direct deposit, a credit card, or a debit card (where available). “Purchase Currency”
means the currency in which a Buyer pays for his or her Purchase. The Buyer will be able to see (and in some cases, select) their Purchase Currency when checking out. The Purchase Currency for a Purchase may be different from the relevant Listing Country Currency. "Total Fees"
means the Sale Price, the Freight Fee, applicable Taxes (including GST) and any applicable Buyer's premium and/or Resale Royalty payable by the Buyer. If payment is made by credit card, the amount of any credit card surcharge charged to Artmarketspace with respect to the payment will also be added to the Total Fee.7.2 Payment Services
Artmarketspace provides payments services to Members in connection with and through the Platform (“Payment Services”
). 7.3 Changes to Payment Services
Artmarketspace may restrict the availability of the Payment Services, or certain services or features thereof, to carry out maintenance measures that ensure the proper or improved functioning of the Payment Services. Artmarketspace may improve, enhance and modify the Payment Services and introduce new Payment Services from time to time. 7.4 Third Party Services
The Payment Services may contain links to third-party websites or resources (“Third-Party Services”), such as eWay or Web Active Corporation Pty Ltd ABN 32 086 209 403 and its related bodies corporate. Such Third-Party Services are subject to different terms and conditions and privacy practices and Members should review them independently. Artmarketspace is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Artmarketspace of such Third-Party Services.
Please note that Buyer's payment methods and Seller's Payout Methods may involve the use of Third Party Services. These Third Party Services may charge you additional fees when processing payments and Payouts in connection with the Payment Services (including deducting charges from the Payout amount), and Artmarketspace is not responsible for any such fees and disclaims all liability in this regard. Your payment method or Payout Method may also be subject to additional terms and conditions imposed by the applicable Third Party Services; please review these terms and conditions before using your payment method or Payout Method. 7.5 Use Governed by the laws of Australia
You may not use the Payment Services except as authorised by the laws of Australia and any other applicable laws. 7.6 Company Warranty
If you are agreeing to these Terms on behalf of a company or other legal entity, you personally represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity. 7.7 Use of Platform by Artmarketspace
Artmarketspace may make access to and use of certain areas or features of the Payment Services subject to certain conditions or requirements, such as completing a verification process, meeting specific eligibility criteria, purchase history, or other factors. 7.8 Suspension
Artmarketspace reserves the right to close, suspend, or limit access to the Payment Services in the event we are unable to obtain or verify any information. 7.9 Account Registration
In order to use the Payment Services, you must have an Artmarketspace Account in good standing. If you or Artmarketspace closes your Artmarketspace Account for any reason, you will no longer be able to use the Payment Services. You may authorise a third party to use your Artmarketspace Account in accordance with these Terms. You acknowledge and agree that anyone you authorise to use your Artmarketspace Account may use the Payment Services on your behalf and that you will be responsible for any payments made by such person. 7.10 Provision of Information
When you add a Payout Method to your Artmarketspace Account, you will be asked to provide information such as, for direct deposit, your address, name on the account, account type, routing number, and account number. You must provide accurate, current, and complete information when adding a Payout Method and it is your obligation to keep your Payout Method up-to-date at all times. 7.11 Member Responsibility for Accuracy of Information
You are solely responsible for the accuracy and completeness of your Payout Method information. Artmarketspace is not responsible for any loss suffered by you as a result of incorrect Payout Method information provided by you. 7.12 Financial terms for Sellers
Artmarketspace will require the payment of the Total Fees from a Buyer at the time the Buyer’s Purchase is made. 7.13 Payouts
In order to receive a Payout, you must have a valid Payout Method linked to your Artmarketspace Account. Artmarketspace will generally initiate Payouts to your selected Payout Method for sales of Artworks 14 days after the contract being formed between the Buyer and Seller and receipt of the Total Fees from the Buyer. In certain jurisdictions or instances, Artmarketspace may offer you a different time or trigger for payment. The time it takes to receive Payouts once released by Artmarketspace may depend upon the Payout Method you select. Artmarketspace may delay or cancel any Payout for purposes of preventing unlawful activity or fraud, risk assessment, security, or investigation. 7.14 Amount of Payout
For fixed price sales, the Seller's Payout for a Purchase will be the Sale Price less applicable Fees, Resale Royalties and Taxes (including GST). Artmarketspace must pay the relevant Seller's Affiliate commission (if applicable). In the case of a sale by auction:
Artmarketspace will be entitled to deduct its commission and Taxes (including GST) from the Sale Price;
Artmarketspace will be entitled to deduct any applicable Resale Royalties from the Sale Price unless the Resale Royalty has been paid by the Buyer in addition to the Sale Price;
Artmarketspace must pay the relevant Seller's Affiliate commission (if applicable);
Artmarketspace will be entitled to retain the Buyer's premium (including GST); and
Artmarketspace will be entitled to deduct its Expenses (as defined in the Auction Terms) from the Sale Price. 7.15 Remittance
Artmarketspace will remit your Payouts in your currency of choice, depending upon your/ your Seller's Affiliate's selections via the Platform. If the currency of your Sale Price at the time of Purchase is different from your selected Payout currency when we initiate your Payout, we will apply the Base Exchange Rate to your Payout. Amounts may be rounded up or down as described in Clause 7.22 (“Rounding Off”). 7.16 Limitation to Payouts
For compliance or operational reasons, Artmarketspace may limit the value of each individual Payout. If you are due an amount above that limit, Artmarketspace may initiate a series of Payouts (potentially over multiple days) in order to provide your full payout amount. 7.17 Third-Party Payment Service provider Charges
Artmarketspace is not responsible for any fees that a Buyer’s third-party payment service provider may impose when Artmarketspace charges the Buyer, and Artmarketspace disclaims all liability in this regard. 7.18 Appointment of Agent
Each Seller collecting payment for Artworks facilitated via the Platform hereby appoints Artmarketspace as the Seller’s exclusive payment collection agent solely for the limited purpose of accepting funds from Buyers purchasing the Seller's Artworks. 7.19 Payment Terms
Each Seller agrees that payment made by a Buyer through Artmarketspace, shall be considered the same as a payment made directly to the Seller and the Seller / Seller's Affiliate will provide the Artworks to the Buyer in the agreed-upon manner as if the Seller has received the payment directly from the Buyer. Each Seller and Seller's Affiliate agrees that Artmarketspace may refund the Buyer in accordance with these Terms. Each Seller and Seller's Affiliate understands that Artmarketspace’s obligation to pay the Seller and the Seller's Affiliate is subject to and conditional upon successful receipt of the associated payments from Buyers. Artmarketspace guarantees payments to Sellers and Seller's Affiliates only for such amounts that have been successfully received by Artmarketspace from Buyers in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Seller, Artmarketspace assumes no liability for any acts or omissions of the Seller or the Seller's Affiliate (if applicable). 7.20 Member Acknowledgement
Each Buyer acknowledges and agrees that, notwithstanding the fact that Artmarketspace is not a party to the agreement between you and the Seller, Artmarketspace acts as the Seller’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Seller. Upon your payment of the funds to Artmarketspace, your payment obligation to the Seller for the agreed upon amount is extinguished and Artmarketspace is responsible for remitting the funds to the Seller in the manner described in these Terms, which constitute Artmarketspace’ agreement with the Buyer. In the event that Artmarketspace does not remit any such amounts, the Seller and Seller's Affiliate (if any) will have recourse only against Artmarketspace and not the Buyer directly. 7.21 Resolution
You agree that Artmarketspace may collect from you any amount payable through the application of clause 17 by withholding the amount from your future Payouts or other amounts payable to you by Artmarketspace, or adding the amount to the Total Fees payable for a purchase. 7.22 Rounding Off
Artmarketspace may, in its sole discretion, round up or round down amounts that are payable from or to Members to the nearest whole functional base unit in which the currency is denominated (i.e., to the nearest dollar, euro or other supported currency); for example, Artmarketspace may round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00. For currencies denominated in large numbers, Artmarketspace may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Artmarketspace to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000. 7.23 Payment Processing Errors
We will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payout Method or payment method used for the original Payout to or payment by you, so that you end up receiving or paying the correct amount. 7.24 Title and Risk
For fixed price sales, title to and risk in the Artwork passes from the Seller to the Buyer upon delivery of the Artwork to the Buyer's nominated address. The parties agree that confirmation of delivery by the freight agent nominated by the Buyer and provided by Your Freight Agent Pty Ltd ACN 602 410 159 ("Freight Agent"
) is conclusive proof of delivery.
risk in an Artwork passes immediately to the Buyer upon the Fall of the Hammer; and
title in an Artwork passes after Artmarketspace receives in full as clear funds all amounts payable by the Buyer to Artmarketspace with respect to the Artwork. 7.25 Legally Binding Agreement
Upon receipt of a purchase confirmation from Artmarketspace, (or upon your bid being accepted by the Platform as a successful bid in the case of an auction) a legally binding agreement is formed between the Buyer and the Seller, to which Artmarketspace is not a party to, subject to clause 10, and any rules and restrictions specified in the Listing. Artmarketspace will require payment of the Total Fees at the time of creation of a legally binding agreement pursuant to this clause 7. 8 Terms specific for Sellers and Seller's Affiliates
8.1 Listing Information
When creating a Listing through the Platform you must: provide complete and accurate information about the Artwork (such as date of purchase (if applicable), listing description, location, certificate of authenticity, and provenance, if available);
disclose any known faults and
defects; and provide any other pertinent information requested by Artmarketspace.
You are responsible for keeping your Listing information up-to-date at all times.8.2 Price of Artwork
You are solely responsible for setting a price (including any Taxes if applicable) for your fixed price Listing and for artworks submitted for auction all estimates and reserves will be confirmed by Artmarketspace. 8.3 Image Quality
Pictures, animations or UVEs (collectively, "Images") used in your Listings or auction listings must accurately reflect the quality and condition of your Artworks. Artmarketspace reserves the right to require that Listings have Images of a certain format, size, resolution and appearance. 8.4 Freight and Packaging of Artwork
Upon sale of your Artwork, the Seller (or the Seller's Affiliate if applicable) will be notified by email by Artmarketspace or the Freight Agent of the sale, and the date and time for pickup of the Artwork by the Freight Agent or the Buyer. You must promptly arrange for the packaging of your Artwork ready for pick up by the Freight Agent or the Buyer on or before the pickup date and time advised. If applicable, you must also securely attach the transport label emailed to you to the packed Artwork and have the Artwork ready for pick up at the nominated time and date. If the Artwork is not ready for pick up at the nominated time and date, you will be responsible for any additional pick up and rescheduling charges. You must ensure that the Artwork is properly and professionally packed to ensure that the Artwork is not damaged during transport. You will be responsible for improper packaging leading to the Artwork becoming damaged in transit. If you have any questions regarding the transport and delivery of the Artwork, please contact Your Freight Agent Pty Ltd ACN 602 410 159 directly at email@example.com. 8.5 Listing Rules
You may only list one Artwork per Listing.
When listing an Artwork for a fixed price sale, you agree that the Listing must be made available exclusively on the Platform for a minimum period of 3 months, unless sold earlier. 8.6 No Breach of Other Agreements
You represent and warrant that any Listing you post, the offering of any Artwork by you for auction and/or the purchase of an Artwork by a Buyer will not breach any agreements you have entered into with any third parties. 8.7 Resale Royalties
You acknowledge and agree that under the Resale Royalty Right for Visual Artists Act 2009 (Cth) ("the Act"
) a resale royalty of 5% of (the Sale Price plus any applicable GST) ("Resale Royalty"
) applies with respect to Artwork sold through the Platform (whether for a fixed price or at auction) if:
the sale will be the second transfer of ownership after 8 June 2010;
the sale will be for a Sale Price of at least AUD$1,000;
the artist is from Australia; and
the artist is still alive, or has been deceased for less than 70 years.
acknowledge and agree that Artmarketspace will deduct any applicable Resale Royalties from the Payout (unless the Resale Royalty is paid by the Buyer in addition to the Sale Price) and Artmarketspace will pay all Resale Royalties collected by Artmarketspace on the Seller's behalf to Copyright Agency Limited ("CAL"
agree to comply with all requirements of the Act;
agree to provide Artmarketspace with all information required by Artmarketspace to provide CAL with the notice of commercial resale of the relevant Artwork required under the Act and any other information requested by CAL;
acknowledge and agree that Artmarketspace may provide your name and contact details to CAL; and
agree to indemnify Artmarketspace if the Seller fails to comply with any of the Seller's obligations under the Act. 8.8 Insurance
You acknowledge that insurance of Artwork remains your responsibility until risk passes and that Artmarketspace will not obtain any insurance with respect to any Artwork other than the limited transit insurance obtained in the name of Artmarketspace with respect to fixed price sales through the Platform. 8.9 GST
Before Artmarketspace sells any of the Seller's Artworks, the Seller or the Seller's Affiliate must inform Artmarketspace in writing whether or not the Seller will be liable for GST in connection with the supply of those goods as a result of the sale of those goods. If the Seller or Seller's Affiliate does not give Artmarketspace this information, Artmarketspace will be entitled to treat the supply of the Seller's Artwork/s as being subject to GST and may inform potential Buyers accordingly.
If the Seller or Seller's Affiliate has informed Artmarketspace that the supply of the Seller's Artworks will be subject to GST, the Seller authorizes Artmarketspace to inform potential Buyers and issue a tax invoice to the Buyer as the Seller's payment collection agent.
In accordance with A New Tax System (Goods and Services Tax) Act 1999 (Cth), Artmarketspace will collect on behalf of the Seller and the Australian Tax Office a GST of 10% on all applicable transactions where the Seller or the Seller's Affiliate has advised Artmarketspace that the Seller is liable to pay GST or does not inform Artmarketspace whether or not the Seller will be liable for GST. Where GST will be collected by Artmarketspace, this will be noted in the listing for the relevant Artwork.
Overseas Buyers and Buyers non-resident in Australia will not be charged GST if:
- the items are exported through an Artmarketspace approved freight company including Australia Post and Your Freight Agent Pty Ltd ACN 602 410 159; and
- the items are exported within 60 days of the date of sale. 8.10 Warranties
You warrant to Artmarketspace and the Buyer that at the time of sale of the relevant Artwork:
the Seller is the owner of the Artwork, or is properly authorised by the Owner to sell the Artwork;
the Seller can and will, in accordance with these Terms, transfer possession of the Artwork to the Buyer with good and marketable title to the Artwork, free from any third party rights, claims or potential claims (including, without limitation, by governments or governmental agencies);
the Seller or the Seller's Affiliate has provided Artmarketspace in writing all information concerning the Artwork's provenance and has notified Artmarketspace in writing on the existence of any endangered or protected species in the item or any concerns expressed by third parties concerning the Artwork's ownership, condition, authenticity, attribution and export or import history;
where the Artwork has been moved to Australia, the Artwork was lawfully imported into Australia;
that the item has been lawfully and permanently exported as required by the laws of any country in which it was located;
required declarations upon the export and import of the Artwork have been properly made; and any duties and taxes on the export or import of the Artwork have been paid;
the Seller has paid or will pay all taxes and duties potentially due on the sale proceeds of the Artwork and has notified Artmarketspace in writing of all such taxes and duties payable by Artmarketspace on the Seller's behalf outside of Australia;
unless the Seller or the Seller's Affiliate advises Artmarketspace in writing prior to the publication of any Listing or auction listing, there are no restrictions on Artmarketspace's rights to reproduce photographs, UVEs or other images of the relevant Artwork; and
all information, representations, photographs, UVEs or other images or content incorporated by the Seller or the Seller's Affiliate into any Listing or auction listing, or otherwise provided to Artmarketspace for the purpose of any auction or sale, is correct and is not misleading in any respect.
You agree to indemnify Artmarketspace, and its directors and employees and the Buyer, against any loss or damage resulting from any breach of the warranties provided by the Seller or the Seller's Affiliate in these Terms, or any other breach of these Terms by the Seller or the Seller's Affiliate. Where Artmarketspace reasonably believes that there is or may be a breach of any such warranty or term, Artmarketspace is entitled in its sole discretion to rescind the relevant sale. 9 Terms specific for Buyers 9.1 Purchasing Rules
Subject to meeting any requirements (such as completing any verification processes) set by the Seller, you can purchase or bid on an Artwork available on the Platform by following the respective process. All applicable fees, including the amount of the credit card surcharge, the Freight Fee, any applicable Taxes (including GST), and any Resale Royalties and Buyer's premiums payable by the Buyer (collectively, “Total Fees”
) will be presented to you prior to purchasing an Artwork. 9.2 Delivery of Artwork
Upon receipt by Artmarketspace of the Total Fees (in full as clear funds) payable by you with respect to the relevant Artwork, you will be notified by email by Artmarketspace or the Freight Agent of the sale, and the approximate date for delivery of the Artwork by the Freight Agent (if you have not elected to pick up the Artwork). Please check your shipment before signing for it when the Freight Agent makes the delivery. If the items appear damaged, please sign for them "package received damaged", ask the driver to co-sign your written comment on the delivery docket . It is advisable to take photos of the package before it is opened, and then photos of the damaged items inside the box. This will assist you when making a claim. 9.3 Purchase on Behalf of Others
If you purchase an Artwork on behalf of additional buyers, you are required to ensure that every additional Buyer meets any requirements set by the Seller, and is made aware of and agrees to these Terms and any terms and conditions, rules and restrictions set by the Seller. 9.4 Confirmed Sale
You understand and agree that Artmarketspace's confirmation of purchase of an Artwork, or acceptance of your bid by the Platform as a successful bid in the case of an auction, (“Confirmed Sale”)immediately forms a contract of sale between you as the Buyer to purchase the Artwork from the Seller. 9.5 Insurance
For fixed price sales only, Artmarketspace will, at its cost, procure transit insurance for Artworks purchased through the Platform, for up to a value of $30,000 for transit to the Buyer within Australia and for any returns of Artworks within Australia only, where these Terms provide that we will pay for the relevant return. It should be noted that the value of $30,000 covers the combined value of all Artworks in transit in one Load at any one time, with Load being defined as the method by which the Artwork is transported (such as (but without limitation) by road, air, sea or rail). Artmarketspace recommends that Buyers assess the adequacy of this insurance and if appropriate, obtain additional insurance for their purchased Artworks. Please review any respective insurance policy carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy. Upon acceptance of a successful bid at auction, the Buyer bears all risk relating to the Artwork and the Buyer must procure appropriate insurance from then onwards. Artmarketspace does not procure transit insurance for Artworks purchased at auction. 9.6 Release
The Buyer releases Artmarketspace and its directors, employees and agents from any claim or liability arising (including as a result of negligence) as a result of any fraudulent statement, error, misrepresentation or action or omission of any Seller or Seller's Affiliate (including without limitation in any Listing or auction listing). 9.7 Copyright in Artworks
The Buyer acknowledges and agrees that in purchasing an artwork, it is not acquiring any copyright or other reproduction rights in relation to it. 9.8 Export and import licences and customs duties
It is the Buyer's responsibility to be aware of, and comply with, Australia's Protection of Movable Cultural Heritage Act 1986 (Cth) and any other laws applicable to the export or import of Artworks by the Buyer.
Unless otherwise agreed with Artmarketspace in writing:
the fact that a Buyer needs to obtain any export or import licence does not affect the Buyer's obligation to make full payment to Artmarketspace in accordance with these Terms;
if Artmarketspace agrees to apply for any export licence on behalf of the Buyer, Artmarketspace will be entitled to charge the Buyer an additional fee for the service;
Artmarketspace will not be obliged to rescind a sale nor refund any payments made by the Buyer in circumstances where any export or import licence is not granted;
the Buyer must apply for any export or import licence at the Buyer's own cost; and
the Buyer must pay all applicable customs duties.