Theodore and C Portal. Marketplace and Online Platform Conditions of Business for Buyers
THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU AS A BUYER. PLEASE READ IT CAREFULLY.
The following Buyer´s Terms are entered into by and between you and Theodore & C., EST., (“Theodore & C.” or “we” or “us” or “our” or other similar pronouns) and, together with any documents incorporated herein by reference, govern your purchase and our offer and sale of products through the Theodore & C. marketplace at http://www.theodoreandc.com (the “Theodore & C. Website”), whether accessed through a desktop, mobile device, tablet, mobile application or other means (collectively, the “Digital Platform)
We may change these Buyer´s Terms from time to time in our sole discretion, at any time without notice to you, by posting such changes on the Theodore & C. Website. It is your responsibility to periodically check the Buyer Terms for changes before placing an order for products.
1. Our Role:
You acknowledge that we digitally offer products for sale on behalf of third-party sellers, which may be unnamed, or on a consignment basis. As a result, in offering certain products on the Digital Platform and accepting and fulfilling orders we are acting as the applicable seller’s agent and we do not take or transfer title to the product offered for sale on the Digital Platform.
You acknowledge that the products offered on the Digital Platform might be antique or vintage in nature or have been previously owned and therefore may show signs of age and wear.
We offer a limited Authenticity Guarantee with respect to products offered for sale through the Digital Platform, mostly for curated Art pieces and Watches.
EXCEPT AS SET FORTH IN THE AUTHENTICITY GUARANTEE, WE ASSUME NO OBLIGATION TO INDEPENDENTLY VERIFY OR INVESTIGATE ANY PRODUCT, THE RIGHTS OF ANY SELLER TO SELL ANY PRODUCT, OR THE QUALITY OR CONDITION OF ANY PRODUCT OFFERED FOR SALE THROUGH THE DIGITAL PLATFORM.
You agree that your order is an offer to buy, under these Buyer´s Terms of Sale, all products listed in your order. You may not cancel an order following its placement. All orders are subject to our acceptance, and we will not be obligated to fulfill any order unless and until we accept it. Orders are subject to product availability, and we may, in our sole discretion, choose to limit, cancel, refrain from processing, or prohibit an order for any reason.
This may occur, for example, if the product ordered is out of stock (including if another purchaser places an order for a particular product before you do) or has been mispriced, if we suspect the order is fraudulent, or in other circumstances we deem appropriate in our sole discretion. We also reserve the right to take steps to verify your identity before accepting or processing your order.
If we accept your order, we will send you a confirmation email with your order number, a summary of the items ordered, and shipping and pricing details (“Order Confirmation”). Our acceptance of your order and the formation of a contract of sale between you and us with respect to the relevant product(s) will not take place unless and until you have received your Order Confirmation email and your method of payment is charged. If your order cannot be completed for any reason, we will notify you using the information you provide when placing your order.
Certain products that you purchase through the Digital Platform may be subject to additional terms and conditions presented to you at the time of such purchase. We reserve the right to modify, suspend or discontinue, temporarily or permanently, the offering of any products through the Digital Platform at any time, in our sole discretion.
A REFERENCE TO A PRODUCT ON THE DIGITAL PLATFORM DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
3. Product Descriptions:
We attempt to provide accurate descriptions and images of products offered through the Digital Platform. It is your responsibility to review all of the information provided about a product before placing an order. However, we do not warrant that the product descriptions, condition reports, images or other information provided are accurate, complete, precise, reliable, current or error-free. You acknowledge that the products are sold on an “as-is” basis.
All prices posted on the Digital Platform are subject to change without notice. We attempt to provide accurate pricing information regarding the products available on the Digital Platform, but cannot offer guarantees against pricing errors and are not responsible for typographical, or other pricing errors. If an error occurs, we will inform you using the information you provide when placing your order and you may either confirm your order (at the corrected product pricing) or cancel the order. We reserve the right to cancel any order arising from a pricing error. Prices on the Digital Platform are excluding import taxes.
5. Promotional Offers:
Discounts. From time to time, we may offer special promotional offers and/or discounts that may apply to purchases through the Digital Platform. You agree to be bound by any additional terms and conditions that apply with respect to any such special promotional offers or discounts. Promotional offers and discounts may be offered on a time-limited basis. Some products may be excluded from promotional offers or discounts. Such exclusions may be noted on the applicable product detail page and will be detailed in the terms and conditions of the relevant promotional offer or discount.
You agree to pay in full the prices for any purchases you make by payment by Visa, MasterCard, American Express, or bank transfer. We may process payments through third-party service providers, which may post operating rules related to payment on their respective websites and change such rules from time to time.
By placing an order, you authorize us, and our third-party service providers, to charge your selected payment method for all amounts presented to you in the checkout and purchase process. You represent and warrant that: (a) the payment information (including any credit or debit card information) you supply to us is true, correct, and complete; (b) you are duly authorized to use such payment method for the purchase; (c) charges incurred by you will be honored by your credit or debit card company (if applicable); and (d) you will pay charges incurred by you at the posted prices, including all applicable taxes. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due promptly upon our first demand.
7. Shipping & Tax:
Products ordered through the Digital Platform will be shipped to the destination specified in the Order Confirmation. Please note that Theodore & C. is not able to ship products to certain destinations, including to any country that is currently subject to a U.S. embargo, sanctions or other export controls. Please contact Theodore & C. to confirm whether we ship to your intended destination. Once an Order Confirmation is issued, Theodore and C. we will then provide a shipment tracking number upon shipment of all or any part of your order.
Shipping and delivery dates and times are estimates only and cannot be guaranteed, and we are not liable for any loss or damage caused by a delay in shipment. Title and risk of loss pass to you upon our, or the applicable seller’s, transfer of products to the delivery service provider.
Posted prices do not include taxes and, unless otherwise specified on the relevant product page, do not include charges for shipping and handling. International orders may be subject to additional local taxes, import duties or other local requirements that will be bared by the client and notified by the shipping partner.
8. Acceptance and Returns:
Any individual at the delivery address who accepts a delivery from the delivery service provider is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
9. Your Privacy:
10. Your Obligations:
You agree to comply with these Terms of Sale and all applicable laws and regulations of the various states and of the United Arab Emirates. If you are located outside of the U.A.E. , you are responsible for compliance with the laws of your jurisdiction.
11. Customer Service:
You may contact our Client Service Department via email at firstname.lastname@example.org
You agree to defend, indemnify on demand and keep Theodore and C. and our affiliates, parents, subsidiaries and each of our and their respective officers, employees, agents, partners, content providers, service providers, suppliers and licensors (collectively, the “Released Parties”) indemnified, and hold the Released Parties harmless from any and all claims, liabilities, costs, losses (including without limitation consequential and indirect losses) and expenses, including reasonable attorneys' fees, arising in any way from (a) your purchase or use of any products made available through the Digital Platform, or any related services or information, or (b) your fraudulent or deceptive acts or omissions, or breach or violation of the law (including infringement of any intellectual property or other right of any person or entity) or of the Terms of Sale. We will provide notice to you promptly of any such claim, suit, or proceeding. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to assist and cooperate with our defense of such claim. In any event, you shall not settle any such claim without our prior written approval.
13. DISCLAIMER OF WARRANTIES:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PURCHASE, HANDLING, STORAGE AND USE OF ANY PRODUCTS MADE AVAILABLE TO YOU THROUGH THE DIGITAL PLATFORM.
ALL PRODUCTS, SERVICES AND INFORMATION MADE AVAILABLE THROUGH THE DIGITAL PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES (A) MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS, SERVICES OR INFORMATION MADE AVAILABLE OR PROVIDED THROUGH THE DIGITAL PLATFORM, AND (B) HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO SUCH PRODUCTS, SERVICES AND INFORMATION, INCLUDING WITHOUT LIMITATION (1) THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (2) ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, (3) ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, OR OTHERWISE ON THE DIGITAL PLATFORM OR IN CORRESPONDENCE WITH THEODORE & C. OR ITS AGENTS, AND (4) ANY REPRESENTATION OR WARRANTY AS TO AUTHENTICITY, ATTRIBUTION, THE PHYSICAL CONDITION, SIZE, QUALITY, RARITY, IMPORTANCE, PROVENANCE, RESTORATION, EXHIBITIONS, LITERATURE, OR HISTORICAL RELEVANCE OF THE PROPERTY AND NO STATEMENT ANYWHERE, WHETHER ORAL OR IN WRITING, SHALL BE DEEMED SUCH A REPRESENTATION OR WARRANTY.
THE RELEASED PARTIES FURTHER DO NOT WARRANT OR GUARANTEE THAT (X) THE PRODUCTS OR RELATED SERVICES MADE AVAILABLE THROUGH THE DIGITAL PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT THE QUALITY OF ANY PRODUCTS OR RELATED SERVICES AVAILABLE ON THE DIGITAL PLATFORM WILL MEET YOUR EXPECTATIONS OR (Y) ANY INFORMATION PROVIDED WITH RESPECT TO ANY PRODUCT OR RELATED SERVICE MADE AVAILABLE THROUGH THE DIGITAL PLATFORM WILL BE TIMELY, ACCURATE, RELIABLE, PRECISE, THOROUGH, CORRECT OR COMPLETE.
14. LIMITATION OF LIABILITY:
IN NO EVENT SHALL ANY RELEASED PARTY BE LIABLE, WHETHER IN AN ACTION BASED ON CONTRACT INDEMNIFICATION, OBLIGATION, OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO (A) ANY BREACH OF THE TERMS OF SALE, (B) THE PURCHASE OR USE OF, OR THE INABILITY TO USE, PRODUCTS, SERVICES OR INFORMATION MADE AVAILABLE THROUGH THE DIGITAL PLATFORM, (C) ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE DIGITAL PLATFORM WITH RESPECT TO THE PRODUCTS OR RELATED SERVICES MADE AVAILABLE THEREON; OR (D) LOST BUSINESS OR LOST SALES, IN EACH CASE EVEN IF SUCH RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
The Purchase Terms, the Order Confirmation, and any other terms incorporated herein or therein by reference constitute the sole and entire agreement between you and Theodore and C. with respect to your purchase of products through the Digital Platform, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect thereto.
The Buyer´s Terms and the relationship between you and us shall be governed by the laws of the United Arab Emirates, without regard to its conflict of law provisions. You agree that any cause of action that may arise under the Purchase Terms shall be commenced and be heard in the appropriate court in the United Arab Emirates, County of New York. You agree to submit to the personal and exclusive jurisdiction of the courts located within New York County in the United Arab Emirates. Our failure to exercise or enforce any right or provision of the Purchase Terms shall not constitute a waiver of such right or provision.
Any waiver of any provision of these Purchase Terms by THEODORE & C. must be made in writing and signed by an authorized representative of THEODORE & C. and the provision to be waived. Headings used in the Purchase Terms are for convenience only and are not to be relied upon. If any provision of the Purchase Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Purchase Terms remain in full force and effect. The Purchase Terms will inure to the benefit of, and are intended to be enforceable by, THEODORE & C. successors, assigns and licensees. There are no third party beneficiaries to the Purchase Terms.
16. Export and Permits:
It is the purchaser’s sole responsibility to identify and obtain any necessary export, import, firearm, endangered species or other permit for the lot. Any notices in the sale e-catalogue reflect Theodore and C. reasonable opinion at the time of cataloguing and are for general guidance only; Theodore and C. and the consignor make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes.
17. Governing Law and Jurisdiction:
These Conditions of Sale and Terms of Guarantee, as well as the purchaser’s and our respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the United Arab Emirates. By placing an order on the Digital Platform, you shall be deemed to have consented to the exclusive jurisdiction of the state courts of, and the federal courts sitting in, the United Arab Emirates. All parties agree, however, that Theodore and C. shall retain the right to bring proceedings in a court other than the state and federal courts sitting in the United Arab Emirates.
18. Packing and Shipping:
We are not responsible for the acts or omissions in our packing or shipping of purchased items or of other carriers or packers of purchased items, whether or not recommended by us. Packing and handling of purchased items is at the entire risk of the purchaser.
19. Data Protection:
20. Cancellation Right:
The Consumer Rights Directive (Directive 2011/83/EU) and related regulations implemented by the European Union (“EU”) member states (the “Regulations”) give consumers who are habitually resident within an EU member state (an “EU Purchaser”) who purchase goods and services online or otherwise “at a distance” certain cancellation rights under the Regulations.
Under the Regulations, an EU Purchaser who purchases property during the sale from a seller that is a trader has the right to cancel the contract (provided that such contract is a distance contract or an off-premises contract for the purposes of the Regulations) for any reason and without incurring liability within a period of fourteen days after the day on which the property comes into the physical possession of either the EU Purchaser or a person identified by the EU Purchaser to take possession of the property (but not the carrier of the property) (the “Goods Cancellation Period”).
Under the Regulations, in connection with the purchase of property from a seller that is not a trader, an EU Purchaser who purchases shipping services from Theodore and C. (the “Shipping Services”) has the right to cancel the Shipping Services for any reason within a period of fourteen days after the date on which the contract to provide the Shipping Services is concluded (the “Services Cancellation Period”) unless where at the EU Purchaser’s express request it has been agreed that the Shipping Services will begin during the Services Cancellation Period. In the case that the Shipping Services have begun prior to the expiry of the Services Cancellation Period, the EU Purchaser will have the right to cancel the Shipping Services during the Services Cancellation Period until the Shipping Services have been fully performed after which point the cancellation right will no longer apply. If the EU Purchaser lawfully cancels the contract for Shipping Services, Theodore and C. will reimburse the EU Purchaser all payments received from the EU Purchaser in relation to the Shipping Services provided always that if the EU Purchaser requested Theodore and C. to begin the performance of the Shipping Services during the Services Cancellation Period, the EU Purchaser will remain liable for Theodore and C. reasonable costs.