Terms and Conditions
1. Definitions and Interpretation
1.1 In these Terms
“Agreement” means these Terms and the Quote (as amended from time to time), together with any annexes;
“Artwork” means the artwork owned or controlled by the Client in relation to which the Company is requested to carry out Services;
“Client” means the individual or entity set out in the Quote to whom the Company shall provide the Services;
“Condition Report” means a report prepared in the Company’s professional opinion which may include details of the Artwork’s condition, stability, approximate dimensions, previous restorative works and/or damage, which comprise statements of opinion only.
“Company” means Hamish Dewar Limited, a company incorporated in England, with company number: 03816777 and having its registered address at Bank Chambers Brook Street, Bishops Waltham, Southampton, Hampshire, SO32 1AX;
“Confidential Information” includes the terms of this Agreement and any documents and information supplied in any form or media and identified by the Client as “Confidential”;
“Delivery Date” means the estimated date by which the Services shall be completed, as set out in the Quote;
“Expenses” has the meaning as set out in Clause 6.4;
“Fee” means the fee set out in the Quote for the provision of the Services, which shall be exclusive of all taxes, Expenses and Third Party costs;
“Materials” has the meaning as set out in Clause 5.2;
“Quote” means the attachment which sets out the specific details of the Services, the delivery date, the Fee and Expenses;
“Services” means the services provided to the Client by the Company as set out in the Quote; and
“Third Party” means a third party who provides services or additional services in relation to the Artworks other than the Company.
The headings in these Terms are for convenience only and shall not affect their interpretation.
2.1 The Company shall carry out the Services for the Client using all reasonable skill, care and attention as expected of experienced conservators/restorers and in accordance with the Quote, in a timely manner and, subject to amendments, shall use its reasonable endeavours to deliver the Services by any agreed Delivery Date
2.2 The Company shall not be liable for any error or omission provided that the Company exercised all reasonable care and skill in providing the Services.
2.3 The Company may recommend additional services as it deems necessary in its expert opinion.
2.4 If the Company is able to carry out such additional services, it shall confirm the scope and fees in a further Quote, which shall, upon acceptance by the Client, form part of the Services.
2.5 The Company reserves the right to sub-contract Services to appropriate and qualified external service providers, advisors or experts.
2.6 The Company is not qualified to provide current market valuations and the Client acknowledges that any statement relating to value, whether or not in writing, is opinion only and cannot be relied upon by the Client or any third party.
2.7 The Company shall carry out the Services using all reasonable skill and care and based on the information available to the Company at the time of writing and in the conditions available to us at the place of inspection. The Client acknowledges that inspecting and reporting on the condition of Artworks is a matter of professional opinion. It is common for conservators and restorers to express different opinions on particular artworks and new information may come to light which may alter the Company’s opinion in the future. Further, the identification of re-touchings is a complex matter and whilst we shall use our best endeavours to identify re-touchings, these are limited to those that are readily identifiable to the conservator under ultra-violet light and the conservator’s professional opinion. We cannot guarantee that all re-touchings in the Artwork will be identified or that something we identify is a re-touching.
2.8 The Company makes no representation, warranty or guarantee as to title, absence of claims, provenance, value, authenticity, importance, marketability. Any statement the Company does make in this regard, whether oral or in writing is opinion only and cannot be relied upon by the Client or any third party.
3. Third Parties
3.1 Should the Client require additional Services that cannot be carried out by the Company (or a subcontractor of the Company), the Company may recommend a Third Party to the Client to provide the services.
3.2 If the Client instructs the Company to engage a Third Party, unless the Company subcontracts the services of the Third Party (as per Clause 2.4 above), the Company shall be duly authorised to engage a Third Party as agent of the Client to carry out such additional services. In doing so, the Client acknowledges and agrees that the Company’s responsibility is limited to arranging the Third Party to provide the services to the Client and the Company shall not be liable for any act, omission, negligence or otherwise of the Third Party.
3.3 The Company shall be authorised to engage the Third Party on substantially the same terms as these Terms. If the Third Party does not agree to provide the services on substantially the same terms, the Company shall inform the Client and seek its instructions.
3.4 Notwithstanding that the Third Party may invoice the Company on behalf of the Client, the Client remains solely responsible for the fees of the Third Party, which shall be included on the Company’s invoice.
4. Client’s Obligations
4.1 Unless otherwise agreed in writing, the Client will arrange packing and shipping of the Artworks and all relevant materials and/or documentation to the premises of the Company, including previous condition reports and photographs and information on any prior damage, conservation or restoration and any reason that the Artwork (including the frame and any labels) may be particularly fragile,
4.2 Where the Services are to be performed at the Client’s premises, the Client shall provide the Company, its agents, consultants, employees and any Third Party, in a timely manner and at no charge, with access to the Client’s premises and to the Artworks and provide safe, clean and suitable facilities as required by the Company to perform the Services. The Client acknowledges that the inspection is limited to what can reasonably be identified in the environment where the inspection takes place and that if lighting and other equipment requested by the Company is not provided, this may affect the inspection.
4.3 The Client shall promptly agree the Quote; any further Quote(s); any recommendations for additional services; and/or the appointment of a Third Party in writing within 30 days of a request for approval, otherwise the Company shall not be obliged to deliver the Services and shall be entitled to provide a new Quote.
4.4 Unless otherwise agreed in advance with the Company, the Client shall at all times maintain an all risks nail to nail insurance policy for the Artworks for no less than their market value (“Insurance Policy”). The Client shall ensure that the Insurance Policy covers the Artworks for international transit if required, storage and for all Services to be carried out.
4.5 The Client shall keep its insurers up to date and seek prior approval where necessary of any relocation, restoration, cleaning, or transport of the Artworks and provide the names and details of the Company and/or any Third Party. In the event that the Client’s insurers do not approve of any part of the Agreement, the Client must immediately inform the Company in writing. The Company shall have no liability in respect of the insurers’ failure to cover loss or damage.
5. Client’s Warranties and Indemnitys
5.1 The Client hereby warrants and represents to the Company that:
5.1.1 the Client is the legal and ultimate beneficial owner of the Artworks or has all necessary rights, licences and permission to authorise the Company to carry out the Services without further third-party permission;
5.1.2 the Artworks are free of all liens, charges and encumbrances of any nature;
5.1.3 unless otherwise specified by the Client in advance and in writing, the Artworks are in free circulation and can be moved internationally without restriction;
5.1.4 all import or export taxes, duties, imposts and any other taxes relating to the Artworks have been fully paid;
5.1.5 the Client has provided the Company with all information, documentation or materials within the Client’s possession or control in relation to the Artworks; and
5.1.6 save as notified by the Client in advance, there are no restrictions on photographing the Artworks for the purposes of performing the Services and that there are no restrictions on conservation or restoration (such as by reason of an Artwork being deemed a “national treasure” in any country throughout the world).
5.2 The Client agrees and undertakes not to amend, modify or reproduce in part any of the reports, valuation, documentation, photographs or any other materials created by the Company in the performance of the Services (“Materials”), for any purpose. In the event the Client wishes to share with a third party, disseminate or publish any such Materials it shall credit the Company as the author (unless such right is waived by the Company) and unless otherwise agreed by the Company in writing, shall include the Materials in full.
5.3 The Client shall indemnify and hold the Company harmless against all costs, claims, liabilities, damages and expenses incurred by the Company in connection with any claim by any third party that the Client was not authorised to approve the Quote, the appointment of a Third Party or other services to be carried out in relation to the Artworks.
5.4 The Client shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person) arising directly or indirectly from the Client’s breach of this Agreement, fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement.
6.1 In consideration for the performance of the Services, the Client shall pay the Fee as set out in the Quote to the Company, plus all applicable taxes and Expenses incurred in performing the Services within 30 days of the date of a properly addressed invoice from the Company. If, upon inspection, further work is required, the Company reserves the right to revise the Fee in a further Quote.
6.2 The Company shall issue an invoice on completion of the Services, which shall include all Expenses, additional costs and taxes incurred to the date of that invoice. The Company reserves the right to charge in instalments for larger projects.
6.3 In the event that the Client fails to comply with its obligations in Clause 4, the Company shall be entitled to charge the Client further for costs incurred set out in Clause 5.4.
6.4 In addition to the Fee, the Client shall reimburse the Company for all out of pocket expenses reasonably and necessarily incurred by the Company in carrying out the Services including but not be limited to: travel, additional digital images and any other costs incurred at the request of the Client (“Expenses”). The Company shall use its reasonable endeavours to provide estimates of such costs to the Client in advance.
7. Terms of Payment
7.1 In the event of late payment:
7.1.1 the Company shall be entitled to charge interest at a daily rate of 5% above the base rate of the Bank of England per annum, as well as reasonable storage charges for the Artworks in the Company’s possession;
7.1.2 the Company reserves the right to cease any further Services and to retain any and all materials or documentation provided by the Client, the Materials and/or the Artworks in its possession;
7.1.3 The Company shall be entitled, until payment of all sums due, to exercise a lien over any Artwork in the Company’s possession or control.
8.1 The Delivery Dates, if any, quoted in the Quote for completion of the Services are best estimates and the Company shall not be liable for any delay in completion of the Services howsoever caused. Delivery Dates shall not be of the essence.
8.2 The Company may, but is under no obligation to store or insure the Artwork if it has not been collected. In the event that Artwork remains uncollected within six (6) months of the date on the invoice, the Company shall be entitled to exercise its right as regards uncollected goods under the Torts (Interference with Goods) Act 1977. Such acts include the right to charge storage of the Artwork, and the right to sell the Artwork and deduct from the proceeds of the sale any outstanding amounts owed to the Company, including but not limited to the Fee, Expenses, costs of sale and reasonable storage charges.
9. Damage to or Loss of the Artwork
9.1 The Client acknowledges and agrees that in handling, inspecting, cleaning and/or restoring valuable Artworks there is always a risk of damage. The Company shall use its reasonable endeavours to ensure the care and safekeeping of the Artworks in the performance of the Services, however, the Company shall not be liable for any loss or damage to the Artworks howsoever caused and the Client shall ensure that the Insurance Policy covers all risks.
9.2 The Client shall be responsible for requesting advice on care and handling of the Artworks after completion of Services.
9.3 The Company will have no responsibility for the accuracy of the description of the Artworks, their authenticity, condition, provenance, value or significance. Any Materials or valuations produced by the Company are based on opinion and on the information reasonably available to the Company at the time.
9.4 Subject as expressly provided in these Terms all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.1 The Company shall have no liability to the Client for any loss of revenue or profits (whether direct or indirect) or for any special, indirect, incidental or consequential loss, charges, interest or expenses howsoever arising (whether under contract, tort or otherwise) in connection with the subject matter of this Agreement.
10.2 Notwithstanding Clause 10.1, the total aggregate liability of the Company howsoever arising (whether under contract, tort or otherwise) in connection with the subject matter of this Agreement shall be limited to £3,000,000 [three million pounds sterling] Any claim in connection with the subject matter of this Agreement must be brought by the party making the claim within five (5) years of the date of this Agreement. Nothing in this clause is intended to exclude or limit liability for fraud or for death or personal injury caused as a result of the Company’s negligence.
11.1 Either party may terminate this Agreement by giving no less than 30 days written notice.
11.2 Either party may terminate this Agreement immediately in writing and without prejudice to any other remedy available to the terminating party, in the event that:
11.2.1 the other party ceases or threatens to cease to carry on business or is found to be insolvent, or in the case where the Client is an individual, enters into bankruptcy or the other party reasonably believes that such insolvency or
11.2.2 in the event of a material or persistent breach by the other party of this Agreement and where such breach is capable of remedy, fails to remedy such breach within 5 Business Days of notice by the other party. For the avoidance of doubt, non-payment shall constitute a material breach by the Client.
11.3 In the event of termination:
i. the Company shall cease providing the Services at the date of expiry of the notice period and shall submit a final invoice for the proportion of the Fee incurred to the date of termination, together with Expenses incurred, which shall be payable by the Client within 14 Business Days. The Company shall use its reasonable endeavours to cancel any Third Party services on behalf of the Client and/or to recover any Expenses provided that such services or Expenses have not yet become payable.
ii. upon receipt of payment of the final invoice, the Company shall deliver up all Materials (even if part completed).
11.4 The Company shall not be held liable for any damages, costs, claims and expenses, which result from incomplete Services in relation to the Artworks following termination, howsoever caused.
12. Force Majeure
Neither party shall be a held liable for delay or non-performance of the Services, or compliance with its obligations under this Agreement, 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, and curtailment of transportation facilities preventing or delaying attendance the Company’s employees, and any other events, including emergencies or non-emergencies.
13.1 Save as expressly stated in these Terms, the parties agree not to share Confidential Information with a third party, without the other parties’ prior written consent, except to their legal and financial advisers and insurers on a need-to-know basis save that the Company shall be permitted to disclose such information as reasonably necessary to perform the Services and to obtain quotes from Third Parties. Nothing in this Clause shall prevent any party from disclosing Confidential Information relating to the Artworks to any competent governmental or fiscal authority solely to the extent required of it by law; provided that the recipient of such information shall (i) provide the other party reasonably prompt notice of such requirement prior to making any such disclosure where legally able to do so; (ii) provide reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure; (iii) endeavour to furnish only that portion of the information as required by law to disclose, and (iv) will make known that the information disclosed is Confidential Information requiring confidential treatment.
13.2 If the Services have been provided in relation to an Artwork that is subsequently offered for sale publicly or publicly exhibited, the Company shall be entitled to disclose and verify (i) that it carried out the Services; and (ii) the Company’s findings, opinions and condition of the Artwork, unless the Client has expressly stated in writing that such information may not be disclosed.
13.3 The Company shall be entitled to retain a copy (in hard copy and electronic copy) of all Materials it prepares as part of the Services and retains copyright and all other intellectual property rights throughout the world whether existing now or in the future. The Company agrees not to publish Materials without the Client’s express written consent. The Company shall be permitted to use the Materials (anonymised where applicable) as an example of its work.
13.4 The Company shall require each Third Party to enter into a written agreement with the Company, which shall obligate such Third Party to similar obligations of confidentiality as those undertaken by the Company and to return to the Client any Materials that have been put at the disposal of the Third Party and to hand over to the Company any documentation, photographs or any other material created by the Third Party in the performance of its services. These obligations of confidentiality shall survive and remain in full force in the event of termination of the agreement.
14.1 Any notice or demand required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by registered mail or email (provided the sender uses the email address in the Quote and obtains a delivery receipt).
14.2 Any notice shall be deemed to have been duly received:
14.2.1 if delivered personally, when left at the addresses set out in the Quote;
14.2.2 if sent by registered mail, three (3) days from the date of posting to the address set out in the Quote.
14.3 If sent by email, on the business day upon which it was delivered provided it was delivered before 5pm London time, if delivered after 5pm it shall be deemed received on the following business day.
14.4 The provisions of this paragraph shall not apply to the service of any proceedings or other documents in any legal action.
15.1 These Terms and the Quote (as amended from time to time together represents the entire understanding between the Company and the Client and supersedes any and all other prior agreements between the parties with respect to such subject matter and declares all such prior agreements as null and void.
15.2 In the event of termination, Clauses 5, 9, 10 and 13-17 inclusive shall survive and remain in full force and effect. If any part of this Agreement, or the application thereof to any person or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such part as applied to other persons or circumstances, shall remain in full force and effect.
15.3 A right or remedy under this Agreement may only be waived in writing signed by the party making the waiver. No waiver by the Company of any breach of the Agreement by the Client shall be construed as a waiver of any subsequent breach of the same or any other provision. No delay or omission in exercising any right under this Agreement will operate as a waiver of that right or of any other right, nor of the right on any further occasion.
15.4 The terms of this Agreement may not be assigned or amended, except in writing signed by the Company and the Client.
15.5 In the event of a dispute, the parties shall attempt in good faith to negotiate a settlement between them. If any dispute cannot be resolved between them either party may give the other party 7 days' notice (hereinafter the “Notice of Mediation") to resolve the dispute or difference through Mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed, the Mediator shall be nominated by CEDR.
16. Contracts (Rights of Third Parties) Act 1999
The Services and Materials are provided for the benefit of the Client only. Save for as set out in Clause 3, nothing in this Agreement is intended to confer on any person any right to enforce any term of this Agreement.
17. Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and the English courts shall have non-exclusive jurisdiction over any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).