4.3.1 Absentee or proxy bids are those bids which are placed by a Registered Bidder in any Auction, either before the start of the Auction or during a live Auction, where the system automatically places the bids for the Registered Bidder as per the amounts and/or limits set by the Registered Bidder (a “Proxy Bid” or an “Absentee Bid”).4.3.2 Absentee or Proxy Bids can only be placed by a Bidder through the Website.
4.3.3 A Proxy Bid placed during a live auction cannot be canceled once placed.
4.3.4 If a Proxy Bid is placed during the live Auction, the amount shall be at least 20% (twenty percent) higher than the next valid bid.
4.3.5 The Bidder may place a Pre-Auction Proxy Bid at any time at least 24 hours prior to the start of an EYE WITHIN ART Auction and may place a Proxy Bid at any time after the Auction goes live until the end of the Auction.
4.3.7 EYE WITHIN ART reserves the right to reject any Proxy Bid at its sole and absolute discretion without assigning any reason.
4.4.1 the Opening Bid shall be the value of the lower estimate in respect of the Lot; or
4.4.2 in case of a No Reserve Auction, the Opening Bid shall be Rs. 20,000 (Indian Rupees Twenty Thousand).
4.5.1 Except as provided below, all live bids on the Website shall have anincrement of 10% (ten percent); and
4.5.2 if the bid exceeds Rs. 5,00,00,000 (Indian Rupees Five Crores), the increment on the live bid shall be 5% (five percent).
4.6.1 Phone bidding is a free service offered as a convenience to all Registered Bidders. EYE WITHIN ART is not responsible for any error (human or otherwise), omission, or breakdown in providing this service.
4.6.2 Phone bid requests must be made no later than 48 hours prior to the Auction. EYE WITHIN ART will accept bids by telephone for Lots only if any of its staff is available to take such bids. EYE WITHIN ART may record telephone bids at its sole discretion and by bidding on the telephone, the Registered Bidder agrees to EYE WITHIN ART recording any telephonic conversations at its sole discretion. All telephone bids are governed by these Terms and Conditions of Sale.
4.6.3 In the case of telephone bids, at about the time the Lot comes up for auction, attempts will be made to contact the Bidder by telephone and, if successful, the Bidder may then participate in the auction through the EYE WITHIN ART's staff. The Bidder accepts that any such contact is at the Bidder's sole risk. EYE WITHIN ART does not take any responsibility and shall not be liable should there be any interruption or suspension of phone services.
4.6.4 The Bidder accepts that in the event that the telephone link is not established, or breaks down, or in the event of any confusion or disruption, theBidder may not be able to participate in the Auction.
4.6.5 EYE WITHIN ART will not be held responsible or liable for instructions or authorizations given to it which are unclear or incomplete, and in the case of unclear or incomplete instructions, such bids will not be accepted and/or placed in the concerned Auction.
4.6.6 If it is impossible to obtain telephone contact or the link breaks down, EYE WITHIN ART is authorized to continue to bid on behalf of the telephone bidder up to the maximum bid last stated over the call.
4.6.7 In order to avail the phone bidding service, the Bidder must provide access to his/her account on the Website, including the login credentials and the password to his/her account, to an EYE WITHIN ART's representative, who will then place the Bid on his/her behalf. If the password is not available with the Bidder, he/she may choose to generate an OTP from the Website, which he/she will have to provide to the EYE WITHIN ART's representative to access his/her account. The Bidder is advised to change his/her account password after the end of each Auction when he/she has disclosed his/her password or the OTP to any EYE WITHIN ART's representative to avoid any unauthorised account access in the future.
4.6.8 The Bidder shall not hold EYE WITHIN ART responsible for any unauthorised access to his/her account and/or any losses, damages, liabilities, claims, demands made, charges and expenses which are suffered, sustained or incurred by the Bidder as a result of such unauthorised access. The Bidder shall indemnify, keep indemnified and hold harmless EYE WITHIN ART, at all times, from and against any actions, suits, proceedings, notices, claims,demands made, penalties, losses, damages, liabilities, costs, charges andexpenses that EYE WITHIN ART may suffer as a result of any unauthorised access to the Bidder’s account.
4.6.9 It is made clear if for any reason such phone call / mobile call is disconnected or not audible or complete conversation could not be audible for any reason whatsoever EYE WITHIN ART will not be liable for the same and decision taken by EYE WITHIN ART in this regard without assigning any reason will be final and binding upon the parties.
4.7 Personalized Bid Notifications The Bidder shall be kept informed about the progress of his/her bids at an EYE WITHIN ART Auction, including when he/she is outbid and/or when he/she wins a particular Lot, by e-mail and mobile alerts.
4.8 By bidding at an EYE WITHIN ART Auction, the Bidder makes an irrevocable offer to purchase the Lot. Such an offer shall be deemed to be
accepted when the bid placed by the Bidder is the Hammer Price for any Lot in an Auction.
4.9 Bids may be placed in USD or INR. All foreign currency exchange rates during an EYE WITHIN ART Auction shall be based on a constant rate. However, they are subject to change after each session.
4.10 EYE WITHIN ART reserves the right to accept, record and/or reject any bid without assigning any reason whatsoever.
4.11 EYE WITHIN ART reserves the right to reject the highest bid from any Bidder on the Auction Date, at its sole discretion without assigning any reasonwhatsoever.
4.12 Once the Bidder has placed a bid and/or a Proxy Bid, the Bidder cannot cancel such a bid.
4.13 The closing bid is considered to be the winning bid only if such a bid exceeds the Reserve Price.
4.14 In the event a bid is placed under 3 (three) minutes from the closing schedule of the Lot, the closing time for that Lot will be reset to 3 (three)
minutes. This process shall continue until there are no further bids placed under 3 (three) minutes remaining for the end of the Auction for the Lot in question.
4.15 EYE WITHIN ART reserves the right to rescind the sale within 7 (seven) Business Days of the Auction Date on account of a breach of any of these Terms and Conditions of Sale without assigning any reason whatsoever.
5.1 EYE WITHIN ART assures, on behalf of the source/owner of the Lot, the authenticity of the Lot on its Website to the best of its knowledge and abilities. EYE WITHIN ART relies on the authenticity guarantees given by the source of the Lot and cannot be held liable for its accuracy. Bidders and Buyers are advised to conduct their independent verification of the Lot for its authenticity and condition. It is made clear that the owner of the Artwork with regard to the authenticity of the Art in auction shall be liable for giving the guarantee about the authenticity.
5.2 The Buyer may, subject to conditions under Clause
5.3 below, raise a claimchallenging the authenticity of the Lot within 1 (one) month from the date the Lot is collected or received by the Buyer from EYE WITHIN ART. A claim for refund in the case of any in-authenticity of the Lot may be made only by the Buyer, and nobody else. If the Buyer transfers the Lot to any other entity, that entity shall not be eligible to make any claim against EYE WITHIN ART for any reason whatsoever.
5.3 In order to successfully raise a claim to challenge the authenticity of the Lot under this Clause 5:
5.3.1 the Buyer shall be required to produce examinable proof clearly demonstrating that the Lot is deemed inauthentic by an established and
acknowledged authority;
5.3.2 the Lot should be in the same condition as it was at the time of purchase from EYE WITHIN ART, subject to EYE WITHIN ART''s satisfaction; and
5.3.3 any expenses incurred by EYE WITHIN ART in recovering the amount refundable under Clause 5.5 below shall be borne by the Buyer.
5.4 In the unlikely event that any Lot is proved to be inauthentic to EYE WITHIN ART’s satisfaction, within a period of 1 (one) month from the date the Lot is collected or received by the Buyer from EYE WITHIN ART, EYE WITHIN ART shall be liable to pay back the Total Purchase Price minus any shipping charges, to the Buyer, subject to the recovery of such amount by EYE WITHIN ART from the original owner/source of the Lot. The Lot shall be returned to EYE WITHIN ART by the Buyer in the same condition as it was, when it was delivered, at the Buyer’s expense and responsibility.5.5 In the unlikely event that a Lot is proved to be inauthentic to EYE WITHIN ART’s satisfaction, EYE WITHIN ART shall raise a claim for refund of money with the original owner/source. If the original owner/source fails to refund the amount, the Buyer shall authorize EYE WITHIN ART and cooperate in any manner possible to recover the amount as may be due and payable by the original source/owner to EYE WITHIN ART, by adopting any appropriate legal proceedings at the costs and expenses of the buyer without making the EYE WITHIN ART liable in any manner.
5.6 The Buyer shall be responsible for any expenses that EYE WITHIN ART's may need to incur in order to authenticate the Lot, in the case of any claim of in-authenticity.
6. PAYMENT BY THE BUYER
6.1 The title and ownership interest in the Lot shall be transferred in favour of the Buyer, along with the assignment of any copyright that EYE WITHIN ART owns, only after all payment due under this Clause 6 is received by EYE WITHIN ART in its bank account notified to the Buyer for payment through bank transfer.
6.2 The total purchase price payable by the Buyer to EYE WITHIN ART shall include the Hammer Price, EYE WITHIN ART's Buyer’s Margin, GST (asapplicable), TCS (if applicable) and any shipping, packing and handling charges incurred by EYE WITHIN ART in connection with the Lot, as calculated by EYE WITHIN ART (the “Total Purchase Price”).
6.3 EYE WITHIN ART shall raise an invoice in the name of the Buyer within 3(three) Business Days of the Auction Date (the “Invoice Date”).
6.4 The Buyer shall pay the Total Purchase Price to EYE WITHIN ART within 7 (seven) days of the Invoice Date.
6.5 The Buyer who are residing in abroad, apart from the total purchase price including all taxes, transportation charges, any other impositions of taxes including import duty of their respective country, necessary permission from the appropriate authority/country if required, shall be the sole responsibility of the Buyer and the EYE WITHIN ART will not be liable in any manner.
6.6 Buyers, who are Indian tax residents, shall pay the Total Purchase Price in INR, and all other Buyers shall pay the Total Purchase Price in USD. If the Total Purchase Price is stipulated in INR terms, then the Buyer must ensure that EYE WITHIN ART receives the full payment of the Total Purchase Price, irrespective of exchange rate fluctuations, if any.
6.7 Apart from the auction price, the Buyer shall pay all taxes, impositions, transportation charges, packer charges, GST and all other impositions that may be imposed by any authority prior to taking delivery of the said Art work.
6.8 In the event the Buyer does not pay the Total Purchase Price of the Art work along with the aforesaid dues and expenses within the timeframe provided under Clause 6.4, he shall be liable to pay a Late Fee to EYE WITHIN ART's at 2% (two percent) per month on the Total Purchase Price for up to 1 (one) month on and from 7 (seven) days from the Invoice Date (the “Long Stop Date”), after which the Sale may be subject to cancellation at EYE WITHIN ART’s sole and absolute discretion and the Buyer will be liable to pay liquidated damages of 15% on the Hammer Price. The Buyer agrees that the aforesaid amount represents a genuine pre-estimate of the damages which EYE WITHIN ART will suffer as a consequence of the Buyer’s failure to pay the Total PurchasePrice on or before the Long Stop Date.
6.9 In the event the Buyer does not pay the Total Purchase Price including aforesaid expenses within the stipulated time frame provided under Clause 6.4, EYE WITHIN ART shall treat such non-payment as a breach of these Terms and Conditions of Sale and the Parties shall proceed on the premise that a Dispute under Clause 10 has arisen.
6.10 In the event the Buyer does not pay the Total Purchase Price including aforesaid expenses and taxes within the stipulated time frame provided under Clauses 6.4 and 6.6, EYE WITHIN ART may at its discretion dispose the Lot as it may deem fit, including by a re-auction.
7. DELIVERY AND COLLECTION OF PURCHASED LOT
7.1 Subject to receipt and clearance of the Total Purchase Price including aforesaid taxes, expenditure, EYE WITHIN ART shall ship the Lot to the Buyer within 7 (seven) days from receipt of the Total Purchase Price (the “Date of Payment”).
7.2 All delivery duration / periods mentioned shall only be an estimate based on past experience and estimates given by EYE WITHIN ART’s delivery partners and shall not be construed to be a guarantee.
7.3 Subject to receipt and clearance of the Total Purchase Price including expenses and taxes and other impositions mentioned herein above payable by the Buyer, the Buyer may also opt to collect the Lot from EYE WITHIN ART at his own expense and responsibility.7.4 Any Buyer who opts to collect the Lot from EYE WITHIN ART under Clause 7.3, but fails to collect the said Lot within 30 (thirty) days from the Date of Payment shall be charged a demurrage/storage fee at 2% (two percent) per month on the Total Purchase Price of the Lot calculated from the Date of
Payment.
7.5 The Buyer shall be liable to insure the Lot against any damages or losses in transit and the buyer shall be solely responsible for all such damages and losses that may be caused in transit.
7.6 Unless the description of the Lot stipulates otherwise, all purchased Lots are packed and dispatched as per EYE WITHIN ART’s determination of the best mode of shipping. However, if the Buyer prefers an alternative mode of shipment, the same may be implemented at the Buyer’s sole cost and responsibility. EYE WITHIN ART shall invoice the buyer for costs incurred in relation to the foregoing and shall not incur any responsibility for any damage that may be caused to the Lot during transit.
7.7 In the case of international shipments, the Buyer shall be liable for all costs, charges and expenses including risk of transportation i.e. any damage caused during the transit.
7.8 From the date of handing over the Artwork all liabilities as well as responsibility of the EYE WITHIN ART ceases and the Buyer shall be solely
responsible taking the Artwork to the destination at his own costs, risks and expenses.
8. EXTENT OF EYE WITHIN ART'S LIABILITY
8.1 The description of the Lot, as contained on the Website is to the best of EYE WITHIN ART's opinion and as represented by the original source/owner of the Lot. Bidders are advised to engage and consult with independent professionals/experts on the same.
8.2 EYE WITHIN ART shall not be liable for any damage or loss during transit of the Lot. Such losses must be covered by the Buyer as provided under Clause 7.5.
8.3 EYE WITHIN ART shall not be liable for any loss or damage caused in case the Website has any technical problems, including for any failure or delay in executing the bids placed via the Website.
8.4 EYE WITHIN ART shall not be liable for the rejection of any bids received post the stipulated closing time of the auction of the Lot. EYE WITHIN ART acknowledges that there may be a lag period between the Bidder placing the bid and the same being received and registered by EYE WITHIN ART. Bidders are advised to safeguard against such lags in placing individual bids by updating their account with the relevant Proxy Bid.
8.5 EYE WITHIN ART and any of its affiliates and (as applicable) their respective directors, officers, employees, representatives and advisors shall not be liable for any errors or omissions on the Website, in the catalogue or in any marketing communication.
9. EXTENT OF BUYER'S LIABILITY
9.1 Securing the winning bid shall be deemed to result in an enforceable contract of sale between EYE WITHIN ART and the said Bidder in accordancewith these Terms and Conditions of Sale.
9.2 All Lots offered in an EYE WITHIN ART Auction are in its 'present/current condition' encompassing all existing faults and imperfections. Bidders are advised to inspect each Lot carefully before bidding.
9.3 The Buyer shall be solely liable for all expenses for packing, insurance, shipping or handling charges in connection with the sale of the Lot.
9.4 The Buyer shall be liable for any duties or taxes in addition to the Total Purchase Price under Clause 6.2 in connection with the sale of the Lot.
9.5 All Lots classified as Antiquities or Art Treasures under the Antiquities and Art Treasures Act, 1972 are non-exportable and cannot be taken out of India. Any attempt to export such a work without the express permission of Archaeological Survey of India (ASI) shall entirely be at the Buyer's risk.
9.6 All Lots deemed to be a 'Notified Antiquity' under the Antiquities and ArtTreasures Act, 1972 need to be registered with ASI. After such a Lot is sold at the auction, it is the Buyer's responsibility to intimate the ASI of such transfer and to ensure that the registration is transferred to the Buyer’s name.
9.7 Due to the unpredictable nature of internet/mobile data network and mobile app accessibility, there may be a lag period between the time of the Bidder placing the bid, and it being received/registered by EYE WITHIN ART's server. Although the Bidder may have placed a bid within the stipulated closing schedule, if EYE WITHIN ART receives the transmitted bid post the closing schedule the bid will be rejected. It shall be the Bidder’s responsibility to updatehis account with the relevant Proxy Bid in order to safeguard any lag-oriented delays while placing individual bids.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1 These Terms and Conditions of Sale shall be governed by and construed in all respects in accordance with the Applicable Laws of India, as amended from time to time (without giving effect to its principles of conflict of laws).
10.2 Any and all disputes, differences or claims whatsoever arising out of or in connection with or relating to these Terms and Conditions of Sale, including the existence, breach, termination validity and/or interpretation thereof (“Dispute”), shall be resolved mutually and amicably by both the Parties. If the Dispute cannot be so resolved within a period of fifteen (15) days. Either Party will be at liberty to refer to the sole Arbitrator to adjudicate the dispute between the parties. The arbitration shall be conducted in accordance with the provisions of the Arbitration & Conciliation Act, 1996 or any statutory re-enactment or modification thereof. The venue of the arbitration proceeding will be held in Kolkata and shall be conducted in the English language.
10.3 All the costs and fees with respect to any arbitration under these Terms and Conditions of Sale shall be borne by the Parties equally without recourse to recovery of costs. Any reference to arbitration under the terms of these Terms and Conditions of Sale, shall be made by either Party in writing.10.4 Each of the Parties hereby acknowledges and agrees that its failure to participate in arbitration proceedings commenced pursuant to Clause 10.2 above in any respect or to comply with any request, order or direction of the arbitrator shall not preclude the arbitrator from proceeding with such arbitration and/or making a valid final award.
10.5 Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to these Terms and Conditions of Sale shall be in writing and signed by or on behalf of the Party giving it. Such notice shall be served by sending it by electronic mail to the email address of the Bidder/Buyer or EYE WITHIN ART (contact@eyewithinart.com), as the case may be, or delivering by hand, registered post A.D., or courier to the registered address of the Party. Any notice so served shall be deemed to have been duly given (i) in case of delivery by hand, when hand delivered to the other Party; or (ii) when sent by electronic mail, upon transmission of the message by the Party giving notice; or (iii) when sent by registered post A.D., where 7 (seven) Business Days have elapsed after posting; or (iv) when delivered by courier on the 2nd (second) Business Day after deposit with an overnight prepaid delivery service, with next Business Day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider.
11. CONDITIONS OF SALE
Please read these conditions of sale and the sale particulars carefully before placing any bid on a Lot or buying any Lot using buy now/bid now/Proxy Bid/phone bid. These conditions of sale and the sale particulars, along with the important notices and explanation of the cataloging practice, set out the terms and conditions on which EYE WITHIN ART offers the Lots listed in thecatalogue. By registering to bid and/or by bidding at an Auction, Bidders agree to these terms and conditions and they will become contractually binding on such Bidders. This Clause also describes certain limitations and exclusions of liability for EYE WITHIN ART and the seller of a Lot, where applicable. Bidders should ensure that they have understood all charges, fees and taxes that may be applied to their respective bid prices before they place their bid(s).
11.1 The condition of Lots can vary widely due to factors such as age, previous damage, restoration, repair, and wear and tear. Their nature means that they will rarely be in perfect condition. Lots are sold “as is”, in the condition they are in at the time of the sale, without any representation or warranty or assumption of liability of any kind as to condition by EYE WITHIN ART or its associates/employees.
11.2 Any reference to condition in the sale particulars or in a condition report will not amount to a full description of condition, and images may not show the condition of a Lot clearly. Colours and shades may look different on the screen/in the pages compared to the appearance on a physical inspection. Condition reports may be available as per the sole discretion of EYE WITHIN ART to help Bidders evaluate the condition of a Lot. Condition reports are provided free of charge as a convenience to Bidders and are for guidance only. These condition reports offer EYE WITHIN ART's’s opinion, but they may not refer to all faults, inherent defects, restoration, alteration or adaptation. For that reason, they are not an alternative to Bidders seeking their own professional advice.
11.3 Estimates are based on the condition, rarity, quality and provenance of the Lot and on prices recently paid at auction for similar property. Estimates can change. Neither a Bidder, nor anyone else, may rely on any estimate as aprediction or guarantee of the actual selling price of a Lot or its value for any other purposes. Estimates do not include any buyer’s premium/premiums or any applicable taxes or charges.
12. MISCELLANEOUS
12.1 By participating in any auction, the Bidder acknowledges and accepts that he/she is bound by these Terms and Conditions of Sale, as may be updated from time to time on the Website. EYE WITHIN ART may make changes to these Terms and Conditions of Sale from time to time without any prior notification. It shall be the Bidder’s sole responsibility to make himself/herself aware of the updated Terms and Conditions of Sale, if any, before an EYE WITHIN ART Auction.
12.2 Each and every obligation under these Terms and Conditions of Sale shall be treated as a separate obligation and shall be severally enforceable as such in the event of any obligation or obligations being or becoming unenforceable in whole or part. To the extent that any Clause of these Terms and Conditions of Sale are unenforceable, they shall be deemed to be deleted and any such deletion shall not affect the remainder of these Terms and Conditions of Sale not so deleted, provided the fundamental terms of these Terms and Conditions of Sale are not altered.
12.3 The Bidder consents to his/her data, as provided to EYE WITHIN ART at the time of registration, being stored, engaged with, and used by EYE WITHIN ART across its formats, including but not restricted to – Website registrations, social lead generation forms, search engine lead forms, etc.
12.4 The Registered Bidder consents to his/her data, as provided to EYEWITHIN ART at the time of registration, being shared by EYE WITHIN ART with third party providers, tools and/or processors for the purpose of EYE WITHIN ART’s marketing and analytic services and in order to facilitate EYE WITHIN ART providing a better experience to its clients/customers. EYE WITHIN ART does not sell the personal information of its Registered Bidders.
12.5 Until the Buyer pays the Total Purchase Price to EYE WITHIN ART, no title, right of ownership or otherwise shall be transferred to the Buyer.
12.6 EYE WITHIN ART reserves the right to store, maintain and use any data as it may collect before, during or after any auction to provide any service in the present or future. EYE WITHIN ART shall also have the right to use such data as it may see fit in order to analyse, improve and market its services. These data shall include any personal information, auction data, bid history, pricing history, etc.
12.7 Only the Courts at Calcutta shall have the exclusive jurisdiction to try and entertain the disputes between the parties.
