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CONDITIONS OF ONLINE PURCHASES
As Of 2018-08-03
1. INTRODUCTION AND APPLICABILITY
These terms and conditions are applicable when Bukowski Auktioner AB and Bukowski Oy Ab offer through their digital market place on Internet (the “Service”) where a customer (the “Customer”) can register and purchase auction items and items at a fixed price (”Item”). “Bukowskis” shall hereafter refer to Bukowskis Auktioner AB in case of agreement regarding items received in Sweden for selling and to Bukowski Oy Ab in case of agreement regarding items received in Finland for selling. Bukowskis acts as a commission agent which means that the owner of an item (the ”Seller”) commissions Bukowskis to, in its own name but for the Seller’s behalf, sell Items through the Service. As an exception, Bukowskis can sell Items on its own account and which are owned by Bukowskis, e.g. Items retaken from the Customer during the auction process. The contact details to Bukowskis in Sweden are; Bukowski Auktioner AB, org.no. 556434-1369, Box 1754, 111 87 Stockholm, e-mail: email@example.com, phone: +46 8-614 08 00 and to Bukowskis in Finland; Bukowski Oy Ab org.no. 0906523-0, Stora Robertsgatan 12 FI-0120 Helsinki e-mail: firstname.lastname@example.org, phone: +358-9-668 91 10. In addition to applicable mandatory legislation, these conditions, the pricelist and other policies published by Bukowskis regarding the Service (jointly referred to as the “Conditions”) shall exhaustively govern the Customer’s registration and use of the Service and purchase of Items. The Customer must accept the Conditions to be entitled to use the Service and purchase Items from the Service. More detailed information regarding the use of the Service, the bidding process and other useful information is provided on HELP. In addition to these Conditions, please see the sales conditions which govern the Seller’s rights and obligations in connection with the sale of an Item, and the transport conditions which govern the transport services provided by Bukowskis on HELP.
The Customer registers to the Service by filling in the registration form which is provided on the website of the Service, Web Site. The Customer shall provide correct and complete personal data and contact details and is liable to ensure that this information at all times is updated. Through the registration, the Customer accepts the Conditions and is bound to follow the Conditions and any instructions in relation to the use of the Service. If a company is registered as a Customer, the registration shall be made by an individual that has the right to bind the company to the Conditions and who shall be stated as contact person for the company at hand. The following persons/Customers may not use the Service:
(i) persons under the age of 18,
(ii) persons with a limited legal competence or
(iii) Customers which have been, provisionally or permanently, suspended from the Service. The Customer may only use the Service by using its own login and password and the Customer is liable for all bids and activities that are placed or carried out under the Customer’s account. The Customer shall ensure that the password is kept confidential and not disclosed to third parties. The Customer may not lend or sell its login or password to any third party. The pass word must be changed immediately if there is any reason to believe that the login information has been disclosed to
unauthorized persons or risks to be abused in any other way. Bukowskis protects stored personal data. Bukowskis may verify the accuracy of any information provided by the Customer in connection with registration or thereafter, e.g. by the use of different technical tools or through searches in third party registers. As regards the processing of personal data, please see section 15 below.
3. THE SERVICE AND ITS USE
The Service is provided ”as is” and Bukowskis makes no warranties regarding the availability of the Service. The Service may from time to time, in part or in whole, be unavailable or not function satisfactory, due to planned or unplanned support, operational disturbances or other circumstances. Bukowskis is not liable for any damages that may occur if the Customer cannot access the Service e.g. to place a bid on an Item. Bukowskis reserves the right to update, revise or provisionally or permanently cease to provide the Service. Bukowskis has the right to suspend Customers and their accounts from using the Service, including but not limited to Customers which: (i) do not follow the Conditions; (ii) have unpaid invoices that have fallen due; (iii) have not collected purchased Items or (iv) Bukowskis assesses abuse the right to withdrawal as stated in section 7 below. A Customer who has been suspended from the Service has no right to reregister or to use the Service through another Customer’s account/login.
4. CATALOGUE/ITEM DESCRIPTION /RESERVE PRICE
The reserve prices indicated for different Items are based on a market adjusted estimation of the Items before the auction and shall only be used as guidance for the Customer. The final price for an Item may essentially exceed or fall below the reserve price. The Customer is always liable to carry out an inspection of the Item (see section 12). Information about the Item which e.g. is provided in the Item description may be changed e.g. if new information about the Item becomes known. Any changes or additions are published on the Service web site (“Web Site”). If any change/addition is of material importance for the value of the Item, Bukowskis is entitled to remove the Item from the Service and bring back the Item with a new price, title and description.
5. COOKIES AND THE POSSIBILITY TO EXCLUDE COOKIES
6. THE BIDDING PROCESS AND PURCHASES
Customers that participate in bidding shall follow the instructions regarding the bidding process that are available on the Web Site. In order have a chance to win a bidding the bid shall fulfil the following requirements: (i) the bid shall, with at least a certain price range, so-called bid increment, exceed the bid which at such time is leading the bidding. (ii) the bid shall at least amount to the lowest price that the Seller may have determined for the Item (the “Reserve Price”). (iii) the bid shall at least amount to the lowest starting bid that has been indicated for the Item on the Web Site. More information regarding the bid increments and starting bids (interval and limits that may vary over time) can be found on HELP. The Customer may participate in the bidding in two ways, by manual bidding or by automatic bidding through an automatized bid service. In relation to manual bidding the Customer follows the bidding on its own and determines if and when the Customer wants to place a bid. In relation to automatic bidding the Customer indicates a maximum bid which corresponds to the highest amount that the Customer is willing pay for the Item (the “Maximum Bid”). Upon placing such Maximum Bid, the Service will automatically start the bid service and place bids on the Customer’s behalf, placing the smallest necessary bid at every time, up to the Customer’s Maximum Bid. The winning bid can therefore be lower than the Maximum Bid. If an auction ends with two bidders placing two equal bids, the first bid that has been registered in the Service wins. All bids (including Maximum Bids) are binding for the Customer and cannot be changed or be withdrawn. A bid is winning if the bid, at the end of the auction, is the highest bid and at least amounts to the Reserve Price of the Item. Bukowskis and the Customer that has placed the winning bid (the “Purchaser”) are deemed to have entered into a binding agreement as soon as the auction has ended. The Customer is obliged to control whether or not a bid has resulted in a purchase. The Customer may not participate in a bidding regarding an Item put for sale by the Customer and may not in any way manipulate or affect the bidding (e.g. by registering two accounts in the Service). A Customer that has bought an Item to a fixed price is also to be considered as a Purchaser and shall follow the instructions that are available on the Web Site.
If the Customer is a consumer, the Customer has a right to withdraw for a purchase according to the Swedish Act on Distance Contracts and Off-Premises Contracts (2005:59)/the Finnish Consumers Act (38/1978). However, the Customer is not entitled to the right to withdrawal if any of the exceptions in the mentioned laws are applicable. The Customer shall notice Bukowskis that the right to withdrawal is used within the withdrawal period of fourteen (14) calendar days as of the day the Customer or the Customers representative receives the Item. Notice of a withdrawal shall contain the Items item-number and the Customers customer-name, and be sent it to Bukowskis via the e-mail address email@example.com. The Customer shall use the same e-mail address as registered under the customer-name. The Customer can also use Bukowskis form for withdrawal which is available at [www.bukowskis.com]. Alternatively, notice of a withdrawal can be submitted by using the standard form which is available on the Swedish Consumer Agency’s website, www.konsumentverket.se After a Customer has made the withdrawal, the Customer shall on its own expense return the Item within fourteen (14) calendar days. If the Item has been collected by the Customer, the return shall be made to the nearest Bukowskis office. If the Customer has chosen home delivery, the Item shall be returned to the Bukowskis office from where the Item was bought. A return shall not be made thorough cash on delivery. The risk of damage or lose the Item including the responsibility to package and take care of the Item to minimize the risk for damages during the transport. Returned Items of Items which is excluded from the right to withdraw according to applicable law will be stored by Bukowskis at the receiving office for collecting of the Consumer. If the Item is not collected within seven (7) calendar days, the Consumer will be charged a fee and/or the costs for transport and storage at a third party in accordance with section 11 below. When Bukowskis has received a returned Item, the Customer will be repaid within fourteen (14) calendar days, with possible reduction for the Items decreased value due to the handle of the Item of the Customer, possible additional transport costs due to the delivery choice of the Customer other than the standard delivery of Bukowskis, and storage fees and/or costs for transport and storage at a third party for the days Bukowskis has stored the Item and the number of days exceed seven (7) calendar days (see more under section 11 below). Repayment to the Customer will be made in the same form and to the same bank account number or card with has been used for the purchase. If Bukowskis assess that the Customer has abused the right to withdraw from a purchase, i.e the use of withdrawal to get off a bid and therefore influence the bidding process, the Principal or other customers on a non acceptable way according to Bukowskis, Bukowskis are entitle to shut down the Customer’s account and the Customers access to the Service.
8. PURCHASE COMMISSION
In addition to the bid service that can be used through the Internet, the Customer can, at no additional cost, order a purchase commission from Bukowskis at Bukowskis’ auction houses, for addresses see HELP. The purchase commissions are handled confidential and shall be received by Bukowskis at least one (1) hour before the end of the auction in question (subject however to the opening hours of the different auction houses). If two equal bids are the highest in the auction, the bid that was first registered in the Service shall be considered to be the winning bid. Bukowskis places bids on behalf of the commissioning Customer as beneficial as possible and maximum up to the price that has been indicated in the purchase commission. Bukowskis has the right to disregard a received purchase commission if Bukowskis assesses that the Customer lacks ability to pay or ability to collect the Item in due time (see further under section 11). The Customer who has ordered the purchase commission must verify if the commission has resulted in an actual purchase and such information can be received through the Service or through any of Bukowskis’ auction houses. Bukowskis has no liability for damages that the Customer may incur if Bukowskis neglects to carry through the purchase commission. The Customer is liable for all purchases resulting from an incorrect purchase commission, provided that the incorrectness has not been caused by Bukowskis.
9. PROVISION, FEES AND PAYMENT
Items received for sale in Sweden are estimated, sold and paid in Swedish crowns (SEK). Any fees that are payable in connection with these Items are stated and shall be paid in Swedish crowns (SEK). Items received for sale in Finland are estimated, sold and paid in euro (EUR). Any fees that are payable in connection with these Items are stated and shall be paid in euro (EUR). In addition to the price (the winning bid or the fixed price) that shall be paid for each Item, the Purchaser shall pay the commission and the fees that are specified in the price list in force when the winning bid was placed or when the sale of a fixed price was conducted. In addition, the Customer shall pay (if applicable) the remuneration to the author of the Item following from the resale right (see further under section 10 below). Receipts are received in connection with payment in Bukowskis’ auction houses. If payment is made through the Service, proof of payment can be received electronically through the Service. The Purchaser shall, within seven (7) calendar days after the end of the auction or when the sale of a fixed price was conducted, pay to Bukowskis full compensation for the Item which include (i) the winning bid or the fixed price, (ii) commission to Bukowskis, (iii) if applicable remuneration according to the resale right, (iv) any other applicable fee and taxes related to the purchase and the bid, e.g. card fees and which are stipulated in the price list in force when the winning bid was placed (”Full Compensation”). If Full Compensation has not been paid within seven (7) calendar days from the end of the auction, Bukowskis has the right to require that the purchase is fulfilled and claim interest on overdue payment according to the Swedish Interest Act (1975:635) and charge a reminder’s fee. If Full Compensation has not been paid within fourteen (14) calendar days from the end of the auction, Bukowskis has the right to cancel the purchase and return the lot to the seller.
10. RESALE RIGHT - DROIT DE SUITE
According to the Swedish and the Finnish Copyright Act (Sweden: 1960:729, Finland: 1961:404) and the EC Directive (2001/84/EC), the author has the right to receive remuneration upon resale of works of art and applied art, so-called resale right or droit de suite. This is a copyright compensation that shall be paid to the artist (the author) during the artist’s life and thereafter to its heirs at law during 70 years after the decease of the artist. The compensation shall be calculated as a percentage of the winning bid. The size of the percentage is dependent on the size of the sales price. For more information regarding percentage levels, please see the price list. If an Item which is sold through the Service is subject to this fee, this is stipulated in the Item description for the relevant Item and shall be paid by the Purchaser.
11. COLLECTION /TRANSPORT
If the Purchaser do not collect the item at Bukowskis at the premises stated in the Item description, a transport of the Item can be made according to any of the following alternatives:
(i) transit transport to a premises of Bukowskis;
(ii) home delivery of smaller Items; or (iii) home delivery of larger Items. If the Customer uses its right to withdraw from the purchase in accordance with section 7 above, Bukowskis will only repay the costs for alternative (i). If the Customer uses its right to withdraw from the purchase and has chose (ii) or
(iii), the Customer shall reimburse Bukowskis for the additional costs the chosen transport has brought. Collection or placement of an order of transport for purchased Items can only be made when the Customer has paid Bukowskis Full Compensation for the Item. Upon collection of the Item, the Purchaser receives a hand out certificate. Bukowskis stores the Item at no additional cost during seven (7) calendar days (excluding the day when the relevant auction ended or when the sale of a fixed price was conducted). If the storage period exceeds seven (7) calendar days, the Item will be stored on the Purchaser’s cost. Upon storage in Bukowskis own premises, Bukowskis has the right to charge a storage fee in accordance with the levels stipulated in the price list in force when the winning bid was placed. Further, Bukowskis is entitled to hand over the Item to an optional external storage/transport agency for transport/storage, whereupon the Purchaser shall bear all costs related to such transport and storage. By taking part of these conditions, the customer expressly approves the conditions for storage and agrees to pay the storage fees and/or cost for transport to a third party. In case the Customer exercise the right to withdrawal under section 7 above, the Customer is consequently obligated to pay for the number of days that the storage of the Item exceeds seven (7) calendar days. By taking part of these conditions, the Purchaser is informed that Bukowskis has a significant interest to have the Item removed after it is sold. If the Purchaser pays the Item but do not collect the Item within seven (7) calendar days (excluding the day when the relevant auction ended or when the sale at a fixed price was conducted), Bukowskis will send a request to the Purchaser to collect the Item including a notification that the purchase may otherwise be cancelled twenty-eight (28) calendar days after the day when the auction or the sale was conducted. Therefore, if the Purchaser fails to collect the Item Bukowskis reserves the right to cancel the purchase. In case of cancellation, the Purchaser is entitled to receive what he has paid to Bukowskis, minus the above stated storage fee and/or costs for transportation and storage at a third party. If the Purchaser does not collect the Item within three (3) months from the request hereof, Bukowskis is entitled to sell the Item in accordance with the provisions in the Swedish Act (1985:982), (Finland 1988/688) on business proprietors’ right to sell items that have not been collected (Swe. Lagen om näringsidkares rätt att sälja saker som inte har avhämtats). The remuneration from the sale shall in the first hand be used to cover costs for the sale and the transport agency’s claims and thereafter to cover Bukowskis’ invoices that have fallen due. Any excess amount shall be paid to the Purchaser. As soon as the Item has been collected from Bukowskis the risk and liability for the Item passes to the Purchaser.
12. LIABILITY FOR DEFECTS
All Items are second-hand and are sold ”as is”. The condition of the Item is described in general terms in the condition report published in relation to the Item description. The Purchaser shall, before the auction, thoroughly inspect the Item and assess the condition, value and quality of the Item. Pictures and descriptions of the Item e.g. on the Web Site shall only be used for identification purposes and Bukowskis is not liable for erroneous or incomplete descriptions if such error or incompletion is material. Bukowskis is not liable for defects, shortages or deviations that do not appear from the pictures or from the description. It may be deviations between how an Item looks in reality, how the Item looks on a picture and how the picture looks on a computer screen, in particular in relation to reproduction of colors. Information on the author, authenticity, age, technique, condition or provenance, as well as information on the Item’s general condition, damages and repairs etc. shall only be used for guidance for the Customer upon inspection of the Item. Bukowskis is not liable for damages or defects related to the item as such, e.g. natural wear and tear, aging or decay, mounting on canvases, condition of frames, naturally occurring changes in materials such as bleaching in paper and cracking in wood. Bukowskis takes no responsibility for the functioning of clocks, vehicles, mechanical, electricity or battery driven Items. Bukowskis’ liability for defects in purchased Items is limited to the following. If an Item is defective and Bukowskis is liable for such defect, Bukowskis shall either (i) rectify/restore the defect, (ii) pay value compensation to the Purchaser at an amount corresponding to the defect (the value compensation shall be calculated on the final price of the Item, i.e. what the Purchaser actually paid for the Item excluding commission, fees etc.) or (iii) cancel the purchase. If rectification or payment of value compensation cannot be effected, or is not made within reasonable time after the Purchaser has filed a complaint of the defect, the Purchaser is entitled to withdraw from the purchase. If there are any uncertainties regarding the Seller’s ownership or the Seller’s right to dispose of the Item, both parties are entitled to withdraw from the purchase. In case of withdrawal, the Purchaser is entitled to repayment of the amount the Purchaser has paid to Bukowskis on account of the purchase against return of the Item. Bukowskis is never liable for any damage, loss or cost which directly or indirectly has been caused by or is related to war, war related action, revolution, seizure, confiscation, other measure taken by civil or military authority, atomic nucleus process, terrorism/terror action, regardless if such other matter or action, occurring at the same time or at any other time, has contributed to the damage, loss or cost.
The Purchaser shall report a defect without undue delay after the Purchaser noticed, or should have noticed, the defect and in no event later than: (i) in immediate connection with the collection of the Item if the Item is collected by the Purchaser (or the Purchaser’s representative) at any of Bukowskis collection sites; (ii) in immediate connection with the receipt of the Item if the Purchaser has ordered home delivery and the Item is delivered to an address specified by the Purchaser; (iii) in immediate connection with the collection of the Item if the Purchaser has ordered home delivery and the Item is delivered to post office or other third party delivery point/collection site. If the applicable complaints period is not respected, the Purchaser has no right to invoke such defect. All complaints shall be notified in writing. Bukowskis’ maximum liability for the Item is to repay the price paid by the Purchaser, i.e. the size of the winning bid or the fixed price together with commission and VAT and other applicable fees which have been paid by the Purchaser in relation to the purchase. The Purchaser is not entitled to any additional compensation. Bukowskis is never liable for direct or indirect damages incurred by the Purchaser. The Purchaser is obliged to take all reasonable and normal measures in order to forestall, prevent or limit loss or damage. A non valid complaint which has been returned will be stored at Bukowskis at the receiving premise to be collected by the Customer. If the storage period exceeds seven (7) calendar days, the Customer will be charge a storage fee and/or costs for transport and storage at a third in accordance with section 11 above.
- FORCE MAJEURE If Bukowskis or Bukowskis’ sub-contractor is prevented from or delayed in fulfilling its obligations under these terms and conditions due to a Force Majeure event, Bukowskis cannot be held liable for any damages or other sanctions, provided that Bukowskis within reasonable time, informs the Customer hereof. As soon as the Force Majeure event has ceased the obligation shall be fulfilled as agreed. A Force Majeure is an unforeseeable event that is beyond the control of Bukowskis, e.g. natural disaster, fire, flooding, war, new or amended legislation, acts of government or labour dispute. The Customer may cancel the purchase agreement if Bukowskis is unable to fulfil the purchase within three (3) months due to such a Force Majeure event.
15. PERSONAL DATA
Bukowskis is subject to the provisions in the Swedish Personal Data Act (1998:204), the Finish Personal Data Act (523/1999) and the Finnish Information Society Code (917/2014) regarding processing and storage of personal data. Bukowski Auktioner AB, orgno. 556434-1369, Box 1754, 111 87 Stockholm, e-mail: firstname.lastname@example.org, phone: +46 8-614 08 00 is the data controller for the personal data submitted to Bukowskis by a Customer. Personal data, such as name, address, personal identification number, phone number and e-mail, collected by Bukowskis in conjunction with the Customer’s use of the Service, will be used by Bukowskis to administer and control the Service, the Customer’s use of the Service, to administrate the parties’ contractual relationship and to fulfill Bukowskis’ obligations related to the auction business, in order to provide good service, and to fulfill obligations according to applicable law. The personal data may also be processed for market and customer analyses and statistics as well as for marketing purposes such as customized marketing, administration notices, product offers and newsletters. Further, the personal data may be used for invoicing and to send important information to the Customer e.g. regarding changes of applicable fees, price list, Conditions or to contact the Customer and provide information customized after the interests of the Customer. Personal data may be updated and supplemented by collecting data from private and public registers. For the above-stated purposes, personal data may be disclosed to other companies within the Bukowski group and to companies which the group cooperates with. After a written request hereof, the Customer is entitled to receive written information of personal data registered by Bukowskis and how the data is used. The Customer is also entitled to request Bukowskis to correct or remove inaccurate data. A person who does not want his or her personal data to be used for direct marketing purposes shall make a written request regarding this to Bukowskis.
These Conditions apply to the Customer and its use of the Service and purchase of Items as soon as the Customer has registered with the Service. Bukowskis has, from time to time, the right to change these Conditions including the prices and fees specified in the price list. Further, Bukowskis has the right to provisionally change the fees in connection with marketing campaigns. When the Conditions are changed the Customer shall be informed either by an e-mail to the e-mail address provided in connection with registration or in connection with the Customer’s log-in on the Service.
Bukowskis has the right to transfer agreements executed between Bukowskis and the Customer including, but no limited to, all related rights and/or obligations, to third parties. If an agreement is transferred, Bukowskis will inform the Customer of the successor/transferee by publishing a message on the Web Site or through e-mail. If Bukowskis transfers the agreement to a third party, such party has the right to provide the Service or similar services on another web site. A Customer may not assign the Conditions and/or any related rights or obligations to third parties.
18. EXPORT PERMIT The Swedish act (1988:950) on cultural environment, contains a permit requirement for export of certain, old Swedish and foreign cultural items. The Finnish act (1999:115) on restrictions on export of cultural items contains a permit requirement for export of cultural items from Finland to other member states within the EU. Cultural items that shall be exported outside the European Union also require a specific export permit in accordance with the Council Regulation (EEC) No 116/2009. The Purchaser is solely liable to apply for and acquire any such required permit and shall bear all costs in this regard and Bukowskis has no liability in this regard.
19. ADDITIONAL LANGUAGE VERSIONS
These general conditions of purchase have been translated into other languages (at present Swedish and Finnish). In case of any inconsistencies between the different language versions, the Swedish version shall have precedence.
20. ALTERNATIVE DISPUTE RESOLUTION
If the parties are unable to resolve a dispute, you as a Customer resident in the EU has the possibility to contact a local alternative dispute resolution committee, i.e. a neutral party that Bukowskis may use to resolve disputes if a consumer initiates an alternative dispute resolution process. You may turn to the National Board for Consumer Disputes, www.arn.se or Box 174, 101 23 Stockholm. You may also use the European Commission’s platform for complaints which is available on the European Commission’s website.
Any dispute arising out of, or in connection with an agreement regarding Items received for sale in Sweden shall be settled in accordance with Swedish law and by general courts with the district court of Stockholm as first instance. Any dispute arising out of, or in connection with an agreement regarding Items received for sale in Finland shall be settled in accordance with Finnish law and by general courts with the district court of Helsinki as first instance.