Terms and Conditions of sale 10/05/2021

These Conditions of Sale record the terms of the contract of sale between Aphra Shemza, a multimedia artist residing at Somerset House Exchange, Somerset House, Strand, London WC2R 1LA, UK (the “Artist”) and the buyer of the artwork(s) created by the Artist (“Artworks”) listed on https://www.aphrashemza.com (“Website”) (the “Buyer”). The Buyer agrees to be bound by these Conditions of Sale. If the person who purchases the Artwork does so as agent for the Buyer (whether the Buyer is named or un-named), that person accepts joint and several liability with the Buyer under these Conditions of Sale.  

1. METHOD OF SALE

The majority of the Artworks advertised on the Website can be purchased directly through the Website without direct communication with the Artist. However, from time to time, certain Artworks may be purchased following an enquiry and communication with the Artist by email, particularly if the Artwork is complex, large or requires bespoke installation or shipping outside the UK (as set out in Clause 4). The Artist may also, from time to time agree to create a bespoke Artwork for a Buyer, the details and price of which shall be agreed between the Artist and the Buyer in writing (“Commissions”).  Save for anything expressly agreed in writing by the Artist, these Conditions of Sale shall apply to all methods of sale for the Artworks acquired through the Website, directly via the Artist and Commissions. The Conditions of Sale shall not apply to Artworks sold via other third-party sellers and platforms, which have their own terms of sale.

2. OWNERSHIP AND RISK

Ownership of the Artwork shall only pass to the Buyer upon receipt by the Artist of (i) the full amount in cleared funds of the purchase price as listed on the Website or as otherwise agreed with the Artist in writing (the “Purchase Price”) AND (ii) any additional costs payable to the Artist such as international shipping and delivery costs, (if applicable).  Until ownership has passed to the Buyer following payment, the Artist shall be free to advertise, market and sell the Artwork to any third party, or to withdraw the Artwork from sale, in the Artist’s absolute discretion. Enquiring about an Artwork or communicating with the Artist does not grant the prospective Buyer any rights of first refusal or option to buy the Artwork. 

Risk of loss of, and damage to, the Artwork shall pass to the Buyer on delivery of the Artwork to the Buyer. From the time of risk passing to the Buyer, the Buyer shall be responsible for insuring the Artwork against risk of loss and damage.  

3. PAYMENT

Payment shall be made in the currency listed on the Website, unless otherwise agreed by the Artist in writing. Payment for Artworks acquired directly through the Website shall be made using Shopify Payments and such payments shall be subject to their terms here. Payment for Commissions and Artworks acquired directly through the Artist (i.e not paid for through the Website’s online payment), shall be paid via an electronic bank transfer by the payment date specified on the invoice. Due to the increase in cyber-attacks, when paying the Purchase Price directly to the Artist upon receipt of an invoice, the Buyer shall be responsible for confirming the accuracy of the bank details received with the Artist. The Artist shall not be responsible in the event that payment is intercepted due to hacking or cyber-attack. 

Anti-Money Laundering legislation may mean that the Artist is required to carry out certain due diligence procedures to identify the Buyer for high value Artworks. The Artist may need to request identification from a Buyer before receiving the Purchase Price. Any due diligence documents will be held in accordance with the Privacy Policy. If the identification documents cannot be provided, the Artist may be unable to complete the sale of the Artwork.

4. DELIVERY

Within 2 working days of receipt of the Purchase Price and any additional costs payable by the Buyer such as shipping costs (if applicable), the Artist will arrange packing of the Artwork and delivery to the Buyer’s address (as notified to the Artist directly or via the Website at the time of purchase) in accordance with the delivery methods and timescales below. The Artist shall arrange for the Artworks to be packed safely and securely and in accordance with the type and fragility of the Artwork, which shall be stated on the Website next to each Artwork. 

Delivery shall be as follows:

  • Artworks identified as having “Free Worldwide Delivery” shall include packing and delivery free of charge using Royal Mail first class tracked delivery, or equivalent for UK deliveries, and FedEx tracked delivery or equivalent for deliveries outside the UK. Delivery within the UK takes approximately 2-5 working days and outside the UK takes approximately 10-15 working days. Upon sending, a tracking number shall be sent to the email address provided at the time of purchase. Whilst the Artist uses all reasonable endeavours to ensure prompt delivery, delivery times cannot be guaranteed and time of delivery is not of the essence. Free Worldwide Delivery includes packing and delivery costs, but unless otherwise stated, does not include import tax which may apply in the Buyer’s destination country.

  • Artworks identified as “Bespoke Crating” shall be subject to the fixed shipping cost added at checkout (or as confirmed in writing by the Artist if the acquisition is directly through the Artist) and shall be payable in addition to the Purchase Price at the point of payment. The Artist shall confirm the exact delivery times following payment but delivery within the UK takes approximately 5 days. The fixed cost stated on the Website is for UK delivery only. Should the Buyer wish for these Artworks to be delivered outside the UK, the Buyer must contact the Artist for a quote for shipping the Artwork to the Buyer’s destination. The Artist shall respond with a quote within 2 working days of receipt and it is anticipated that delivery shall take place between 10-15 days after receipt of payment. Unless requested by the Buyer, the quote shall not include the import tax which may apply in the Buyer’s destination country.

Should the Buyer wish to collect the Artworks or arrange shipping directly, they should contact the Artist to arrange this. The Artist shall have no responsibility for the Artworks at the point the Artworks are collected on behalf of the Buyer. 

The Artist reserves the right to charge the Buyer, and the Buyer agrees to pay, reasonable storage and insurance costs if the Buyer is unable to accept delivery of the Artwork and the Artwork is subsequently returned by the shipper or delivery agent to the Artist. In such event, the Buyer shall be required to pay for any further delivery costs after the Artwork has been returned. Unless expressly stated in these Conditions of Sale, failure to accept delivery does not entitle the Buyer to cancel the purchase, and such cancellation shall be in the Artist’s discretion.  

5. INSTALLATION

Unless otherwise specified, the Artworks shall be delivered unframed and installation is not included. Where applicable, installation and care instructions shall accompany the Artworks. 

6. EXPORT AND VAT

The Purchase Price shall be inclusive of UK VAT but does not include any customs duties or import taxes that may apply to the Artworks upon import to any country outside the UK, which shall be the responsibility of the Buyer unless otherwise agreed with the Artist. The Artist shall on request, provide a prospective Buyer with a quotation for all shipping, handling and import (including payment of import tax, customs and handling fees) which can be carried out by a specialist art shipper. 

Unless such taxes and charges have been expressly included in the shipping costs, the Buyer is responsible for compliance with any applicable import and export laws in the country of delivery and the payment of any import taxes, duties or handling fees incurred on the import of the Artwork. 


7. WARRANTIES

The Artist warrants to the Buyer that: 

  • The Artwork is an authentic original artwork created by the Artist;

  • If the Artwork is identified as an edition, the size of the edition shall not be increased beyond the number of editions stated with the Artwork;

  • The Artworks shall be safe and secure for installation and display as an indoor Artwork. Each electrical Artwork has been PAT tested and is accompanied by a certificate. The electrical Artworks are designed using standard a UK household electric plug and 240-volt. The Artist may be able to adapt the Artwork to meet the electrical requirements of another country, and the Buyer should contact the Artist directly to arrange this; and

  • The Artworks shall comply with the Technical Specifications stated on the Website

8. GUARANTEE

The Artist grants to the Buyer, a two-year guarantee period for the Artwork from the date of delivery, in which the Artist shall repair electrical faults or defects caused by defective materials and workmanship for free by either conducting, arranging or supervising the repairs. This guarantee is subject to the Artwork being in the same material condition as at the time of sale and in particular, that the electronics box has been left unopened and the Artwork does not show any signs of tampering. This guarantee shall not include accidental damage, improper use, use with incorrect voltage, repair or alteration by another person other than the Artist or failure to follow installation and care instructions. 

After expiry of the two-year guarantee period, the Buyer must continue to notify the Artist of any faults, defects or accidental damage. The Artist shall have 30 days of receipt of such notice of fault to confirm that the Artist wishes to conduct, arrange or supervise the repair of the Artwork. The reasonable cost of such repairs shall be charged to the Buyer. If the Artist has not responded to the Buyer’s notification within 30 days of receipt, or the Artist does not wish to arrange the repair of the Artwork, the Buyer shall be free to engage any suitable qualified restorer to repair the fault. 


9. PLACEMENT OF WORK

If the Buyer exhibits, displays or lends the Artwork to any gallery, institution or other public venue (whether permanently or temporarily), or authorises the same to be done by a third party, the Buyer shall notify the Artist in writing to allow the Artist to document such display. 

If the Buyer sells the Artwork, the Buyer agrees to (i) use his/her/their best endeavours to notify the Artist of the date of sale and the contact details of the onward purchaser, to allow the Artist to document the location of her Artworks in case of future loan requests; and (ii) to procure the onward purchaser to agree to the same notification obligation in the event of their onward sale. 


10. INTELLECTUAL PROPERTY RIGHTS

The Buyer does not acquire any copyright or other intellectual property right in the Artwork and the Artist’s moral rights are hereby asserted. The Buyer shall not deliberately damage, modify or destroy the Artwork, or copy or reproduce the Artwork or take any other action that may infringe the Artist’s intellectual property rights. 

11. LIABILITY OF THE ARTIST

Subject to Clause 7 above, the Artist makes no representation or warranty, orally or in writing, express or implied (other than those which cannot be excluded by law) with respect to the Artwork, including (without limitation): condition, importance, size, quality, rarity, value, historical significance, medium, material or authenticity, performance which are statements of opinion only and not representations of fact. The sale of the Artwork(s) shall not be treated as a sale by description and statements made orally or in writing by the Artist as to the characteristics of the Artwork shall not be treated as terms of the sale. The Artist is not liable (i) for the statements, data, information and opinions of others, (ii) for any deterioration of the Artwork after the sale save for the limited guarantee in Clause 8 or (iii) in circumstances where the Buyer fails to comply with the Artist’s instructions related to the handling, installation or maintenance of the Artwork. If the Buyer buys the Artwork in the course of business, the Artist, for itself and on behalf of the artist, excludes any liability for breach of any term which may be implied into the sale by the Sale of Goods Act 1979. The Artist’s total liability to the Buyer in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the sale of the Artwork, shall be limited to the Purchase Price of the Artwork excluding any delivery costs and VAT. The Artist shall not be liable to the Buyer for any loss of profits, loss of business, loss of anticipated savings or for any special, indirect, incidental, or consequential loss, costs, damages, charges or expenses to the fullest extent permitted by law. No provision in these Conditions of Sale shall be deemed to exclude or limit the Artist’s liability to the Buyer in respect of any fraud or fraudulent misrepresentation, or in respect of death or personal injury caused by its negligent acts or omissions.


12. RIGHT TO CANCEL

Other than expressly set out in this Clause 12, sales are non-refundable. The right to cancel set out below does not apply to Commissions. 

If under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013  and its amendments set out in the Consumer Protection (Amendment etc) (EU Exit) Regulations 2018 (i) the sale qualifies as an “off-premises contract” or a “distance contract”, and (ii) the Buyer qualifies as a “consumer”, the Buyer has the right to cancel the sale without giving any reason at any time up to the end of 14 calendar days after the Buyer, or a third party (other than the carrier) instructed by the Buyer, receives the Artwork (the “Cancellation Period”). To exercise the right to cancel, the Buyer must notify the Artist of its decision to cancel the sale by a clear statement (e.g. a letter sent by post or email), in either case before the Cancellation Period has expired. A model form cancellation is set out below. If the Buyer cancels the sale during the Cancellation Period, the Artist will reimburse him/her/it the Purchase Price. The Artist will make the reimbursement without undue delay, and no later than (a) 14 calendar days after the day the Artist receives the Artwork from the Buyer; or (b) (if earlier) 14 calendar days after the date the Buyer provides evidence that the Artwork has been shipped to the Artist. The Artist will make this reimbursement using the same means of payment as the Buyer used for the initial transaction. The Buyer shall send back the Artwork or hand deliver it to the Artist at such address as the Artist may specify for that purpose, without undue delay and in any event no later than 14 calendar days from the day on which the Buyer communicates the sale cancellation to the Artist. The Buyer must bear the cost of returning the Artwork to the Artist, including any import duties the Buyer or the Artist may incur as a result of the Buyer’s return. The Buyer is only liable for any diminished value of the Artwork if his/her/its handling of the Artwork went beyond what is necessary to establish the nature and characteristics of the Artwork. If the Artwork is/are returned damaged, the Artist will deduct from the sum the Artist refunds to the Buyer a reasonable amount to compensate the Artist for the cost of repair and any loss in value to the Artwork resulting from such damage. If the Artist invoices the Buyer that amount separately, its invoice is payable on presentation.


Model Form Cancellation

To: Aphra Shemza, Somerset House Exchange, Somerset House, Strand, London WC2R 1LA,  United Kingdom;  Email: aphra@aphrashemza.com

Notice: I hereby give notice that I cancel my contract for the sale of the following goods ordered on/received on:

Name of consumer:

Address of consumer: 

Signature of consumer (only if this form is notified on paper) 

Date:


13. MISCELLANEOUS TERMS

The Buyer agrees to be bound by these Conditions of Sale to the exclusion of the Buyer’s own terms and conditions (if any). No amendment, modification or waiver of any of the terms and conditions herein may be made, except in writing signed by the Buyer and the Artist. No failure to exercise or any delay in exercising any right, power, privilege or remedy under these Conditions of Sale shall impair or operate as a waiver thereof in whole or in part. Should any provision of these Conditions of Sale be held void, invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect. 

Neither party shall be held liable for delay or non-performance of its obligations, where it would be inadvisable, uneconomic or commercially impractical, illegal or impossible to do so due to acts of God (such as, but not limited to, fires, explosions, earthquakes, drought, hurricanes, and floods), war, terrorism or threats of terrorism, civil disorder, government actions, labour strikes or disruptions, fire, disease or medical epidemics or outbreaks, curtailment of transportation facilities, and any other events, including emergencies or non-emergencies. 

These Conditions of Sale are not assignable without the Artist’s prior written consent, but they are binding on the Buyer’s successors, assigns and representatives. No term of these Conditions of Sale shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by anyone other than the Buyer. 

These Conditions of Sale set out the entire agreement in respect of the sale of the Artwork and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements between the Artist and the Buyer relating to the same. The Buyer acknowledges that he/she/it has not agreed to buy the Artwork in reliance on any statement, representation or warranty which is not expressly identified in these Conditions of Sale. 

Any notices to be served under these Conditions of Sale shall be sent to the address of the party being served (for the Buyer being the address added to the Website or notified to the Artist in writing, as updated by the Buyer from time to time in writing) and notices sent to the Artist shall be marked for the attention of Aphra Shemza at the address listed above. Notices shall be deemed received when left at the relevant address if delivered by hand or 4 days after posting if sent by post or, if sent by airmail, 6 days after posting. Notices may be sent by email provided that a delivery receipt is received by the sender. Notices sent by email are deemed received on the next working day in the recipient country after which it was transmitted. Other than as set out in the Conditions of Sale, “in writing” includes email but not any other electronic communications. 

14. APPLICABLE LAW AND JURISDICTION

These Conditions of Sale, and any dispute or claim or whatever nature arising out of or in connection with these Conditions of Sale or their subject matter or formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the law of England. Each of the Artist and the Buyer irrevocably agrees that the courts of England shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with these Conditions of Sale or their subject matter or formation (including non-contractual disputes or claims).