General Contract Conditions

General Contract Conditions

ACTIVITIES OF THE GALLERY

1. The National Council of Fine Arts creates the Organizing Committee of the Havana Auc­tion, and in use of its faculties, appoints Galería Habana, hereinafter called “The Gallery”, to act as mediator between the depositor-seller of each good and the possible buyers at the Oral Bid Auction and the Virtual Gallery, respectively.

The contracting terms of The Gallery are specified below, regardless of those that might be included in the future and which will be duly published in the catalogues.

The Havana Auction, through its web site www.subastahabana.com, offers you the possibility of entering its Virtual Gallery all during the year and purchasing the works you select; all the works to be knocked down at the Oral Bid Auction on November 5 in the city of Havana will likewise be available.

The Oral Bid Auction will maintain as starting price the highest bid per lot obtained at the above-mentioned site.

RELATIONS WITH THE SELLERS

Title of Property and Availability

2. The depositor-seller guarantees The Gallery and The Gallery has verified that he is the owner of the items deposited or to be deposited and has full control over them, or that he has been duly empowered by their owner to dispose of them and that he may therefore transfer their property, the goods also being free of charges or duties.

The depositor-seller of the goods likewise guarantees that he has made available to The Gallery all the information he possesses on their origin and that they are not subject to intellectual property restrictions, except when he has informed The Gallery otherwise.

3. In the extraordinary case of goods or objects neither deposited at The Gallery nor placed un­der its control, the seller guarantees The Gallery that they will be kept in the same way there were when presented to The Gallery, and that they will be delivered when The Gallery requests them.

4. The seller will compensate The Gallery for any damage caused by his non-fulfillment of points 2 and 3, and, in general, of any of the obligations contained in these General Condi­tions to which he commits himself.

Reserves

5. With regard to any of the lots that consist of the deposited goods, the depositor-seller, in coordina­tion with The Gallery and prior to the auction, will have the right to establish a reserve with regard to the minimum purchase price for which the good or lot may be considered sold. Once established, such reserve will not be subject to change except after a new agreement with The Gallery. In those cases in which reserves have been established, only the auction director shall have the right to bid on behalf of the depositor-seller. The latter will not have the right to take part in the auction of those lots deposited by him and with reserve either in his name or on behalf of third parties.

Rights and Duties

6. The seller, with a view to his settlement, au­thorizes The Gallery to deduce the “convened duties or brokerage”, the “expenses” in the ap­propriate cases and the corresponding taxes from the “hammer price”, likewise acknowl­edging the Gallery’s right to receive an amount for the “convened duties or brokerage” from the buyer according to the provisions of the corre­sponding conditions. The seller will receive his settlement ten days after the complete payment of the work is received from the buyer.

7. The seller grants The Gallery the right to photograph and reproduce any good (including the photographs provided by the seller) whose sale has been entrusted to him in any support or at any moment and related to the auction.

8. The seller authorizes The Gallery to carry out with total discretion the trials and inves­tigations on the deposited goods that it might consider necessary.

9. The depositor-seller empowers The Gallery to carry out on his behalf and to his account, among other, the following actions.

a) To transfer, store and insure the sold lot.

b) To agree with the buyer special and reasonable conditions for payment of the purchase price.

c) To carry out any type of handling and all types of claims that might be required to collect the amounts payable by the buyer, and even, if appropriate, to cancel the sale and reimburse sums to the buyer.

d) And, in general, to establish as many judicial or extra-judicial actions that might be neces­sary in defense of the seller’s interests.

Brokerage for Sales Mediation

10. The brokerage or Gallery rights to be paid by the depositor-seller in the Oral Bid Auction shall equal 20% of the hammer price in lots sold for less than 30 000 cuc; 15% of the hammer price in lots sold for 30 000 – 100 000 cuc and 10% in lots sold in excess of 100 000 cuc.

The above mentioned percentages already in­clude the expenses incurred by The Gallery for the reproduction of catalogues, appraisal of items, transportation, insurance (if appropri­ate), etc., except restoration.

Taxes to the Account of the Seller

11. The Gallery will deduct from the payment to the buyer the percentage established as per­sonal income tax.

Withdrawal of Lots

12. Once the sales consignment contract of the work has been signed, the seller will not be en­titled to withdraw his sales instructions. Any dis­agreement on this topic, as well as the definitive withdrawal of the piece by his own decision will be fined by Subasta Habana.

Unsold Lots

13. If a lot does not reach the reserve and is therefore not sold at the auction, the seller grants The Gallery the exclusive right to sell the lot in a private transaction, within a term of at least 90 days counted from the date of the auction. The sales price must grant the seller a sum not less than the “proceeds of sale” at the reserve price if the sale took place in an auction, except in cases when the seller authorizes The Gallery in writing to sell at a lower price.

In case the seller authorizes The Gallery to re­tain the non-sold items under custody, the cor­responding consignment contract will be signed for the time agreed upon by the parties, accord­ing to the above provisions.

RELATIONS WITH THE BUYER

Purchases at the Havana Auction, whether from the Virtual Gallery or at the Oral Bid Auc­tion, will be carried out according to the Cuban legislation and without infringing the interna­tional norms that rule the practice and those of electronic commerce. The knocked down lot may be exported from the Cuban territory to the country determined by the buyer.

In the particular case of clients from the United States of America, it should be recalled that the purchase and sale of art works is protected by the First Amendment of the Constitution of that country, which confirms the right to free expression and free exchange of ideas. In addition, the amendment to the Embargo Act approved in 1988 specifies that “publications, films, posters, records, photographs, microfilms, microfiches, recording tapes and other information materials” are exceptions to the Embargo Act.

The Buyer

14. The highest qualified bidder will be the buyer, and he will purchase the item at the purchase price determined at the moment the hammer falls. Any disagreement in this regard will be solved by the auction director using his full discretional faculty, grnting the lot to who­ever he deems the winner.

All bidders will be considered to be acting as principals unless they are accreditedby a legal document in force to be acting as representatives of a specific physical or legal person.

Bids on Behalf of the Buyer

15. The Gallery will execute written bids free of charge keeping total confidentiality with regard to the ordering buyer. The lots will al­ways be purchased at the lowest possible price allowed by the remaining bids or the reserve. In case more than one offer is received in writ­ing for the same lot and the same amount, the lot will be granted to the first offer received by The Gallery according to date and time un­less other bids exceed the indicated amount. Requests of bids made by telephone prior to the auction will be accepted, and they must be confirmed through a letter, telegram, e-mail or fax. Likewise, those possible buyers who have previously confirmed their interest in bidding for a particular work during the Oral Bid Auc­tion will be contacted by telephone during the auction. These confirmations and the numbers to be dialed will be accepted up to 48 hours prior to November 6.

Brokerage for Sales Mediation

16. The buyer will pay The Gallery the follow­ing duties on the “hammer price” for brokerage and for its advisory and mediation services in the purchase and agrees that The Gallery may also receive brokerage from the seller.

In the Oral Bid Auction, the buyer will pay The Gallery 15% on the initial 30 000 euros of the “hammer price”; 12% on those of more than 30 000 euros up to 99 999 euros, and 10% on those that exceed 100 000 euros.

The expenses incurred by The Gallery for transportation, insurance –if appropriate– and any other costs to be paid by the buyer will be added to this figure.

Payment for Purchases

17. The buyer will pay The Gallery the “pur­chase price”. Payment may be made in cash, by checks issued by Cuban banks, credit cards and bank trans­ference is­sued by non-U.S.A. capital banks to the account indicated by The Gallery. In no case will credit cards be accepted as guar­antee unless they are physically presented in the The Gallery’s offices.

18. Possible buyers interested in purchasing a lot at the auction may exceptionally negotiate delayed payment of their possible purchases with The Gallery, and must have the written authorization of The Gallery before the auction is celebrated.

The buyer will take possession of the goods purchased by him once he has paid the total amount of the “purchase price”.

Any sum paid by a buyer to The Gallery may be used by the latter for the total or partial settlement of any amount previously owed to the Gallery by said buyer, irrespective of the account or concept of the debt. The Gallery will not be in the obligation to follow explicit or implicit instructions from the buyer or his agents in this regard.

19. The buyer will not take possession of any purchased lot until he has paid the full “pur­chase price” through The Gallery for delivery to the seller and of the figures corresponding to “expenses” and additional charges in accordan­ce with the present conditions.

If appropriate, the Gallery shall issue the corresponding commercial or export invoices.

Withdrawal of Purchased Lots

 

20. Once The Gallery has received confir­mation of payment, the buyer may withdraw the purchased goods on his own account or through The Gallery.

 

If the withdrawal of the goods takes place on his own account, it must take place within the ten working days following the auction, once the “purchase price” has been paid to The Gallery.

 

All expenses derived from the transfer and storage of items not withdrawn within the stipulated time will be paid by the buyer at the rate of 0.5% of the purchase price of each item for each week that exceeds the agreed term.

 

21. The packing and handling of the purcha­sed goods by The Gallery’s personnel will be undertaken solely as a service to clients, and in case of fragile objects will be undertaken at The Gallery’s sole discretion. The Gallery will be lia­ble for damage to picture frames and glass only if attributable to its management. Although The Gallery may recommend packers and shi­ppers, it shall not be liable for the damage and omissions caused by them.

 

In case of a good that is not available for withdrawal at The Gallery’s premises, a delivery order issued by The Gallery will be understood as valid authorization for the buyer to pick up said good wherever it may be deposited. From that moment on, said good will be understood as delivered.

 

22. The buyer will assume responsibility for all damage or loss that affect the objects or lots ei­ther from the moment in which the remittance of the work is certified or from the moment it is picked up. After either of the indicated dates, neither The Gallery nor its employees or agents will be held responsible for damage or loss of any kind.

 

If the withdrawal of the works takes place through The Gallery upon request of the buyer, the latter must sign a document in which he requests certain services from The Gallery. In that case, The Gallery will be held responsible for the custody, preservation, packing and transportation of the works, and will be obliged to compensate the buyer in case they suffer any damage, from the moment of the signing of the above-mentioned document. The Gallery will also secure insurance, if the client requests it.

Non-payment or Failure to Collect Pur­chases

23. If the buyer fails to pay the full price for any lot or does not remove it according to the above-mentioned conditions, or if he fails to fulfill any other condition of this contract resulting in The Gallery not receiv­ing the full duties and brokerage due for its services or the remaining expenses it might have incurred on account of the buyer, The Gallery, in its own name and/or in coordina­tion with the seller, according to the follow­ing provisions and irrespective of other rights and actions that might be of its competence, will be entitled to exercise one or more of the following measures:

a) To issue proceedings against the buyer for damages for breach of contract.

b) To rescind the sale of that or any other lot purchased by the same buyer at the same auction.

c) To resell the lot in question, or cause it to be resold by public auction or a private purchase-sale operation, in which case the non-fulfilling buyer will pay The Gallery any difference below the “purchase price” (after deducting any partial payment or payments and adding the cost of the resale and the “fixed brokerage” of buyer and seller).

d) To transfer and store the lot or lots elsewhere, and insure them, all for the account of the non-fulfilling buyer. In case of storage it may take place in The Gallery’s own premises or elsewhere.

e) To charge monthly interests at a rate not higher 1.5% on the “purchase price” in the cases when it remains unpaid in excess of ten working days counted from the date of the auction.

f) To retain the lot in question or any other lot sold to the same buyer at the same auction, and not to authorize its delivery until payment of the “purchase price”.

g) To reject completely any bidding to be made in future auctions by the non-fulfilling buyer or on his behalf, or else obtain from him a deposit before accepting his bidding in the future.

h) To apply any proceeds due from a sale or becoming due from any future sale to the non-fulfilling buyer towards partial or total settlement of the “purchase price”; and the Gallery shall be entitled to a lien or preventive embargo on goods of the above-mentioned buyer in possession of The Gallery for any purpose, and sell those items.

RIGHTS AND OBLIGATIONS OF THE GALLERY

Responsibilities of The Gallery

24. The Gallery does not guarantee in any way, neither implicitly nor explicitly, that the lots are protected by the Intellectual Property Rights, nor that the buyer obtains these rights with the lot; not even the reproduction rights, though not limited to them.

Risk for Damage or Loss of Goods in Deposit

25. Except as explicitly specified, The Gallery will assume the risk for damage or loss of the items consigned to it or under its control for their sale at the auction until the property of said items has been transferred to the buyer. The Gallery’s responsibility for damage to any good will not exceed the amount estimated by The Gallery as present value of the auctioned item, minus brokerage and expenses, and it will never exceed:

a) The “hammer price” minus brokerage and expenses in favor of The Gallery if the good were sold.

b) The reserve minus brokerage and expenses in favor of The Gallery if the good were not sold after having been offered for sale and the reserve determined.

c) The average estimation minus brokerage and expenses in favor of The Gallery in any other case. 

Estimated Prices

26. The purpose of the estimated prices that ap­pear in the catalogue under each lot is to guide possible buyers concerning the amounts within which the bidder, according to The Gallery, will have a fair possibility of obtaining the lot.

In any case, the auction will begin with a starting price lower than the minimum estimated price. The bidding for each lot will evidently carry the prices up to the “hammer price”, which will be lower or higher than the estimations provided it exceeds the reserve price in those cases in which it has been stipulated.

The above-mentioned prices do not include the brokerage for sales mediation at the auc-tion incurred by The Gallery to the account of the buyer.

Admission Rights

27. The Gallery reserves the right of admission to its premises or halls, and likewise reserves the right to forbid the attendance of a certain person or persons to the auction hall. The use of these rights is a discretional faculty of The Gallery.

Administration of Deposited Goods

28. Without having to account for it, the Gal­lery reserves the absolute discretional faculty to choose the pieces or lots for the auction, reject bids, divide lots, combine two or more lots, withdraw one or more lots from the auction and, in case of discrepancy, offer them again in auction.

Terminology

29. In these Conditions, the following words and expressions shall have the following mean­ings:

a) “Sales or hammer price”: Price at which a lot is knocked down to the buyer by the auctioneer.

b) “Purchase price”: the “sales price” of the sold lot plus any charges or brokerage.

c) “Proceeds of sale”: net price due to the buyer, being the “sales price” of the sold lot minus rights or brokerage according to the contract, the “expenses” and the taxes, duties and remaining amounts due by him to The Gallery in whatever capacities and howsoever arising.

d) “Fixed rights or brokerage”: the range of rights or brokerage published at any time by The Gallery.

e) “Expenses”: regarding the sale of a lot, the charges and duties paid by The Gallery for the illustration of the catalogue, special ads, packing and transportation in the country, framing and others with regard to said lot.

f) “Withdrawal price”: the valu eof the highest bid received, lower than the reserve value.

Legal Regime

30. The present Conditions will be ruled and interpreted according to Cuban laws. All oper­ations subject to these Conditions will be sub­mitted to the Cuban legislation as regards their legal qualification and effects, and particularly to the Civil Code and the Code of Commerce.

31. Participation in the auction, whether as buyer, seller or bidder, is based on the ac­ceptance of these General Conditions. They, however, may be subject to changes during the organization of the auction, but they would be timely published for the knowledge of sellers, buyers and bidders. In case of any disagreement that may arise between the parties regarding the sale or purchase of an item, unless previ­ously agreed upon, whichever party involved is entitled to submit its claim to the Cuban Court of International Commercial Arbitration at­tached to the Chamber of Commerce of the Republic of Cuba.