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General
Niambas.com is a market place that allows user to offer, buy and sell original art, antiques, collectables and designer items in a variety of locations and pricing formats. Based in the UK, our mission is to help all artists and makers to reach and sell their works to a wider audience. we also aim to give buyers and collectors access to sources of high-quality arts at reasonable price. We work with artists, private collectors, art galleries, antiques and designer vintage dealers.
Niamba’s does not have possession of anything listed or sold through niamba’s and is not involved in the actual transaction between buyers and sellers. The contract for the sale is directly between buyer and seller. Niamba’s is not a traditional auctioneer.
Niamba does not review users’ listings or content. Niamba’s has no control over, and does not guarantee the existence, quality, safety or legality of, items advertised; the truth or accuracy of users’ content, listings or feedback; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will complete a transaction or return an item.
Niamba’s acts as an agent for the Seller. If you buy a lot on the Site, the contract of sale of the lot is concluded directly between you, the buyer and the Seller. Niamba’s is not a traditional auctioneer. Niamba’s provides certain services to you in connection with your bidding on, and buying, the lot.
Niambas.com is a trading name of Niamba Limited Registered in England and Wales, Company Number: 11851652, Registered Office: 33 Serica Court, 154 Greenwich High Road, London SE10 8NZ
The Terms and Conditions govern every use of the Service or Niamba’s Online Platform. The User accepts these Terms and Conditions by using the Service, by visiting the Online Platform and/or creating an Account. We have the right to amend these Terms and Conditions from time to time, and we shall inform you of any such amendments by posting notices on the Site. You should read these Terms and Conditions before participating in our sales. By registering to bid on the Site, you acknowledge that you are bound by these Terms and Conditions and any Additional Terms.
1 Definitions
1.1 Account: the personal section on the Online Platform containing the personal data and other details, which the User creates by registering for the Service and which is administered by the User.
1.2 Bid: the amount that a User offers for a Lot, including VAT and duties due by the Seller, if applicable, exclusive of the Buyer’s Commission.
1.3 Buyer: A User who concludes a Contract of Sale with a Seller through the Online Platform.
1.4 Buyer’s Commission: the percentage (10%) of the Purchase Price as communicated by Niamba’s on the Online Platform, that the Buyer owes Niamba’s for the use of the Service.
1.5 Consumer: A User who is a natural person and who uses the Service or concludes a Contract of Sale as a Buyer for purposes that are unrelated to his trade, business, craft or professional activities.
1.6 Contract of Sale: the contract of sale that is concluded through the Online Platform between the Seller on the one hand and the Buyer on the other, with respect to a Lot.
1.7 Intellectual Property Rights: all intellectual property rights and related rights, such as copyrights, trademark rights, patent rights, design rights and trade name rights.
1.8 Lot: one or more objects or services that the Seller offers for sale on the Online Platform.
1.9 Online Auction: the online, computer-based and automated auction of Lots by Sellers on the Online Platform.
1.10 Professional Seller: a user who uses the Service to sell Lots in connection with his trade, business, craft or professional activities.
1.11 Purchase Price: the amount of the highest Bid, which the Buyer owes the Seller.
1.12 Reserve Price: the minimum price, which may not be displayed, that the Seller has indicated he wishes to receive for his Lot.
1.13 Seller: The User who offers one or more Lots for sale on the Online Platform.
1.14 Seller’s Commission: the percentage (10%) of the Purchase Price as communicated by Niamba’s on the Online Platform, that the Seller owes Niamba’s for the use of the Service, increased by VAT and net of any taxes (such as withholding taxes), duties and levies that may be due, which will be withheld from the pay out of the Purchase Price.
1.15 Service: the services that Niamba’s offers on the Online Platform, which appear from and are described on the Online Platform and in these Terms and Conditions, including the service that Sellers can use to sell Lots using an online, computer-based and automated auction, and the related supplementary services. For any related supplementary service, such as payment services, provided to you through the Online Platform, Niamba’s may make use of third-Party Service Providers. You may be informed about the use of such third-Party Service Providers at any time when using our Service.
1.16 Third Party Service Provider: a third party, not affiliated with Niamba’s, that makes certain products, services, applications or websites available to you through our Online Platform, such as, but not limited to, payment or shipping services. Your use of such products, services, applications or websites will be governed by and subject to the Terms and Conditions and Privacy Policies of the Third-Party Service Provider.
2 Applicability of the Terms and Conditions
2.1 The User accepts these Terms and Conditions by using the Service, by visiting the Online Platform and/or when creating an Account.
2.2 The English version of these Terms and Conditions is the original version, any other versions are merely translations. If there is any conflict between the provisions stipulated in the various language versions of these Terms and Conditions, the English version will prevail. Any (legal) terms and concepts used in these Terms and Conditions shall however be interpreted according to British law.
2.3 Niamba’s is entitled to amend or supplement the Terms and Conditions at any time by posting the amended Terms and Conditions on our Online Platform. Niamba’s will notify the Users by email if an amendment or supplementation will significantly affect Users’ rights or obligations, or it will bring the changes to Users’ attention during their use of the Service.
2.4 In the event that the User continues to use the Service after the Terms and Conditions have been amended or supplemented, the User thereby irrevocably accepts the amended or supplemented Terms and Conditions. If the User does not wish to accept the amended or supplemented Terms and Conditions, the User’s only option is to stop using the Service and delete his Account.
3. Using the Online Platform
3.1 The User accepts that the Service and the Online Platform contain only the functionalities and other characteristics that the User finds at the time of use. Niamba’s expressly excludes any and all explicit and tacit guarantees, undertakings and indemnifications, of any kind whatsoever, including but not limited to those with respect to the quality, safety, lawfulness, integrity and correctness of the Service.
3.2 The User accepts that the functionalities of the Service and the Online Platform may change.
3.3 Sellers offer Lots on the Online Platform, and Users purchase those Lots directly from Sellers. Niamba’s plays only a facilitating and supporting role, by offering an Online Platform and supplementary services. Niamba’s has no control over or responsibility for the quality, safety, lawfulness or correctness of the Lots that are offered, the Seller’s’ authority to sell Lots, or the authority or ability of Buyers to purchase Lots.
3.4 The User acknowledges and accepts the special circumstances that may arise in connection with an Internet auction and the errors that may occur. That includes – but is not limited to – an inability to access the Online Platform in whole or in part, an inability to place a Bid or to do so in a timely manner, or breakdowns of or defects in the Online Platform or the underlying hardware, network connections or software. Maintenance work on the Online Platform or on the underlying system also may prevent access in whole or in part or the ability to place a Bid in a timely manner. In no event is Niamba’s liable for any damage that the User sustains as a result of such technical problems or other errors.
3.5 Notwithstanding any other provision stipulated in these Terms and Conditions, the User acknowledges and accepts that Lots are the property of the Seller and not of Niamba’s. No contract of sale will be concluded between Niamba’s and the Buyer, and Niamba’s does not transfer any ownership rights from the Seller to the Buyer.
3.6 In order to secure its own rights and those of other Users, e.g. in the event of a breach of these Terms by a User, Niamba’s will at all times be entitled, at its discretion, to suspend payment of any and all funds of the Users in question, to set-off any claims Niamba’s might have, and if necessary, to freeze any balances that those Users may have related to any account linked to or associated with those Users. Insofar as suspending payments, setting-off claims or freezing funds is regulated by mandatory (consumer) law, Niamba’s may only do so in accordance with such mandatory law.
3.7 Niamba’s entitled to restrict you from creating an Account, and from bidding or selling on the Online Platform if you reside in a certain country that is not supported by our third party payment provider. Niamba’s is also entitled to restrict its Service if it has enough reason to believe that you are not acting in accordance with these Terms and Conditions. You will be informed about such restriction while using our Service, for example upon bidding or registration.
3.8 If Niamba’s decides to introduce restrictions to certain countries, it is entitled to off-board Users who reside in the countries to which the restrictions will apply. We will inform these Users about this. Furthermore, Niamba’s will be entitled to off-board Users who do not act in accordance with these Terms and Conditions. When off-boarding Users, regardless of the reason, Niamba’s cannot be held liable or responsible for any damages resulted from the User not being able to sell or buy on the Online Platform.
4 Creating a User Account
4.1 In order to make optimal use of the Service, the User must create an Account in the manner described on the Online Platform. The User can also log in using certain services of third parties, such as a Facebook account. The User warrants towards Niamba’s that the information that he provides when he creates his Account is complete, truthful and up-to-date. The User must provide a username and password during the registration, which will give him access to the Account.
4.2 Sellers who are Professional Sellers are obliged to identify themselves as such when they create their Account. The User accepts that he will be designated as a Professional Seller for all use through that Account. Niambas is entitled to change the status of Accounts if it finds reasonable cause to do so, for example if a Professional Seller has not registered as such.
4.3 The User is obliged to comply with all applicable tax laws and regulations and in that respect to register in the correct capacity and to provide all required information when registering. The User is fully liable for the consequences of providing any incomplete or incorrect information with respect to his tax position and fully indemnifies Niamba’s against all claims brought by third parties, including the tax authorities, and against any and all damage and/or costs that ensue from or are related thereto, and Niamba’s will immediately recover such claims, damage and costs from the User.
4.4 Users are not permitted to create an Account in the name of another person and/or to provide false information. Users may not log in via third-party services accounts of other persons or allow other persons to log in on behalf of the User.
4.5 The User himself is responsible for keeping his username and password combination secret. Thus, the User is liable for any and all use of the Service using his username and password and the User indemnifies Niamba’s with respect to any damage that ensues from misuse or use of his username and password. Niamba’s is entitled to assume that the User is the actual party that logs in using the User’s username and password.
4.6 The User must notify Niamba’s as soon as the User knows or has reason to suspect that a username and/or password has become known to unauthorised parties, without prejudice to his own obligation to immediately take effective measures, such as changing his password.
4.7 In principle, anyone may register with Niamba’s. However, if the User is younger than 18 years of age, he must have permission to do so from his legal representative(s) (guardian or one or both of his parents). The User warrants, by accepting these Terms and Conditions, that he is in fact 18 years of age or older or that he has received permission from his legal representative(s) to create his Account.
4.8 Niamba’s reserves the right to change the registration and login procedure, the password, the username and/or certain User information if it considers it necessary to do so in the interest of Niamba’s, third parties or the operation of the Service.
4.9 Niamba’s reserves the right to deny Users the right to register and take part in an Online Auction and/or to terminate that right unilaterally.
5 Offering Lots
5.1 When the Seller offers Lots, he must clearly and comprehensively provide information regarding the Lot being offered. That information must in any event include – but is not limited to – the following materials and information: (i) a correct, complete and accurate description of the Lot being offered; (ii) information about the condition and classification of the Lot, including whether or not it relates to margin scheme goods in the context of the applicable VAT legislation; (iii) one or more clear photographs that accurately represent the current state (including any defects or deficiencies), features and other particularities of the Lot; (iv) the Reserve Price if applicable (the option to set a Reserve Price will depend on the value of the Lot); (v) an indication of the actual shipping costs; (vi) whether and subject to what conditions the Buyer can receive assistance after the sale (if applicable) and any guarantees; and (vii) any other terms and conditions related to the offer.
5.2 Niamba’s is neither responsible nor liable towards other Users for the description of Lots, including the Seller’s information and statements. The Seller accepts that Niamba’s may propose or make changes to and/or supplement the description of the Lot offered.
5.3 The Seller guarantees that he is the rightful owner of or is authorized to sell the Lots he offers on the Online Platform and that by offering and selling a Lot he is not infringing any law or regulation, any rights of third parties, including rights from agreement and Intellectual Property Rights, is not acting fraudulent in general or is otherwise acting unlawful and/or fraudulent towards third parties or Niamba’s. The Seller also guarantees that the offering and selling of the Lot is a genuine and authentic transaction. More specific the Seller guarantees that the Lot is not offered as part of a fake transaction, enabling the Buyer and/or third parties to transfer an amount and launder the money involved.
5.4 The Seller may withdraw Lots until the time at which they have been published on the Online Platform and are visible to other Users. After that time, the Seller no longer will be permitted to change the conditions attached to the offer. If, notwithstanding the foregoing, a Lot is nonetheless removed from the Online Auction at the Seller’s request, the Seller will be fully liable for any damage caused thereby. Upon first request of Niamba’s, the Seller will (prior to possible removal of the Lot from the auction) provide documents, files or other forms of proof of the facts stated to be the reason for his request for removal. Only after having received enough proof, Niamba’s may, at its discretion consult the highest bidders and remove the lot from the auction.
5.5 Other conditions and admission and/or statutory age requirements may apply in respect of the purchase and sale of certain Lots, including – but not limited to – tobacco products, alcoholic beverages and weapons (including antique weapons). Users are obliged to comply with them.
5.6 The Seller will offer the Lots exclusively on the Online Platform and therefore he will not (or no longer will) offer them through other sales channels. The Seller will remove Lots from other websites, including auction platforms, online marketplaces and its own or others’ web shops.
6. Our Sales
Niambas.com is a market place that allows user to offer, buy and sell original art, antiques, collectables and designer items in a variety of locations and pricing formats.
6.1 Timed Auction Items are for sale over a pre-determined period usually over several days or weeks. Place your bids for your desired item and follow the progress of the auction until it ends. The highest bidder at the end wins the auction.
6.2 Buy Now You can buy before the end of the auction by clicking the Buy now button and follow the instructions. During the Buy Now phase, you can purchase the lot at the price set by the seller without taking part in any bidding for the lot during the timed auction. If you purchase a lot at the Buy Now price, these Terms Conditions will apply to you in the same manner as if you had been the successful bidder in a timed auction. The date and time when the Buy Now phase and the timed auction commence, and end are clearly displayed on the Site. When placing a Buy Now order or bidding online, you accept personal liability to pay the Total Amount Due
7. Property Details
Lots are sold on the Site subject to the Limited Authorship Guarantee and in the condition that they are in at the time of the sale on the following basis.
7.1 The information provided on the Site in relation to lots offered for sale is dependent on information provided to us by the Seller, Niamba’s is not able to and does not carry out exhaustive due diligence on each lot. When we do not take possession of the lot, we do not have the opportunity to inspect its physical condition, and we rely on the images of the lot and other information provided by the Seller to describe it on the Site. You acknowledge that our and your ability to conduct due diligence on lots is limited, and you accept that when bidding and/or buying a lot on the Site, you rely on information provided by the Seller. Notwithstanding the foregoing, we shall exercise reasonable care when describing a lot on the Site considering the information provided to us by the Seller.
7.2 You may contact Niamba’s to inspect the lot to satisfy yourself as to its condition and description before making offers to purchase. Inspections are granted on a discretionary basis and are contingent on the nature and the location of the lot. We offer no guarantee that the lot you wish to inspect will be available for inspection. If you decide to make an offer for a lot you have not inspected prior to making the offer, you acknowledge that you do so at your own risk.
7.3 You acknowledge that many lots are of an age and type, which means that they are not in perfect condition. Lots may have other faults and imperfections not expressly referred to in the lot description on the Site or in a condition report. All dimensions are approximate. Illustrations are for identification purposes only and cannot be used as precise indications of size or convey full information as to the actual condition of lots.
7.4 The description of lots on the Site may include references to condition. Additionally, upon request, we may provide a report on the condition of a lot. If the lot is not in our possession when the condition report is requested, we may facilitate the provision of a condition report by the Seller. Alternatively, we may facilitate the commissioning of a condition report by the prospective bidder. The provision of a condition report may not be practical, given time constraints, the physical location of the lot and other considerations. The condition of lots can vary widely due to factors such as age, previous damage, restoration, repair and wear and tear. Their nature means that they will rarely be in perfect condition. Lots are sold in the condition they are in at the time of the sale. Any reference to condition on the lot page on the Site will not amount to a full description of condition, and images may not show the condition of the lot clearly. The description of a lot on the Site is not a warranty and Niamba’s does not accept any liability whatsoever for any condition report and prospective bidders’ reliance on them.
7.5 Information provided to you in respect of any lot, including any representation or description on the Site, in a condition report or elsewhere, is not a representation of fact but rather a statement of opinion held by the Seller and/or Niamba’s.
7.6 All lots are sold “AS IS” without any representations or warranties by us or the Seller as to merchantability, fitness for a particular purpose, the correctness of the description of the lot including but not limited to its physical condition, size, quality, rarity, importance, medium, provenance, exhibitions, literature or historical relevance and no statement anywhere, whether oral or written, whether made on the Site or elsewhere, shall be deemed such a representation or warranty.
8. The Auction Sale
8.1 Unless indicated otherwise, all lots in Niamba’s auctions are offered with a reserve price. A reserve price is the confidential minimum selling price agreed between Niamba’s and the Seller and below which the lot cannot be sold (the “Reserve Price”). The Reserve Price will not exceed the low pre-sale estimate shown on the lot page on the Site.
8.2 Certain lots offered on the Site may be owned by Niamba’s or its affiliated companies.
8.3 Occasionally, Niamba’s or one of its affiliated companies may have a direct financial interest in a lot offered on the Site.
8.4 Niamba’s reserves the right to reject, revoke or refuse to accept any bid at any time before, during or after any auction. If any dispute arises after the sale, our sale record is conclusive.
8.5 Niamba’s reserves the right to restart a sale or to restart bidding on any lot if we consider it is appropriate and reasonable to do so. Niamba’s shall have no liability whatsoever for any such action taken by us. If any dispute arises after the sale, our sale record is conclusive.
8.6 Niamba’s reserves the right, at our sole discretion, to withdraw any lot from the sale, whether prior to or during the auction or Buy-Now sale and shall have no liability whatsoever for any such withdrawal. If any dispute arises after the sale, our sale record is conclusive.
9 Payment
9.1 In addition to the Buy Now price or the winning bid price of the lot, the buyer is liable to pay Niamba’s the buyer’s premium, the shipping costs and the Loss Damage Coverage, plus any applicable sales tax, use tax, VAT or other tax due (collectively, the “Total Amount Due”).
9.2 The buyer’s premium is 10% of the winning bid price or the Buy Now price. Niamba’s charges a buyer’s premium on lots sold on the Site unless the lot page on the Site explicitly states that a buyer’s premium is not due on the lot. We reserve the right to pay from the buyer’s premium an introductory commission to any third party who assisted us in sourcing or selling the lot.
9.3 All applicable taxes are payable in accordance with applicable law. All prices, fees, charges and expenses set out in these Terms and Conditions are quoted exclusive of applicable taxes.
9.4 You may be liable to pay additional taxes and charges such as import VAT and customs duty if the lot is shipped to the country you designate. Niamba’s shall not collect and pay these additional taxes and charges on your behalf and they are your sole responsibility. The Buyer must ensure that all amounts are received net, and he is therefore responsible and liable for any costs duties and levies due by him. The Buyer guarantees that he does not buy the lot as part of a fake transaction, enabling him and/or third parties to transfer the entire or partial Purchase Price and launder the money involved.
9.5 The Purchase Price will be paid out to the Seller (after deduction of the Seller’s Commission) only after the Buyer has paid the Purchase Price and the Buyer’s Commission and the Seller has shipped the Lot or the Lot has been picked up by the Buyer. Payment may be suspended, if the Buyer has given notice of a dispute due to, e.g., alleged damage to or nonconformity of the Lot.
9.6 Payment processing services on the Online Platform are provided by PayPal and are subject to PayPal Account Agreement, which includes PayPal Terms of Service (collectively, “PayPal Services Agreement”). By selling on Niamba’s, you agree to be bound by PayPal Services Agreement, as the same may be modified by PayPal from time to time. Payment of the Sellers may depend on Sellers filling in all details required by PayPal, such as date of birth and, in the event of a Professional Seller, a company registration number. If PayPal blocks a payment in accordance with PayPal Services Agreement, Niamba’s is entitled to cancel the Purchase agreement and refund the Buyer. In those cases, Niamba’s cannot be held liable or responsible for any damages related to the cancellation of the Purchase agreement.
10 Delivery and acceptance of the Lots
10.1 Unless the Buyer and the Seller have agreed that the Buyer will collect the Lot, the Seller is responsible for sending and delivering the Lot to the Buyer.
10.2 The Seller is obliged to deliver the Lot to the Buyer to whom it has been Awarded, subject to the description and the conditions stipulated by the Seller when the Lot was listed. The Seller is obliged to send the Lots sold to the Buyer, carefully packaged, within three (3) business days after the Seller has received confirmation of payment from Niamba’s, unless the parties have agreed that the Lots will be collected. If the shipping costs are less than the amount indicated in the Online Auction, the Seller will be obliged to refund to the Buyer any excess shipping costs that the Buyer has paid.
10.3 The Seller is obliged to ship the lot from the address as stated in his Account. If the Seller ships the Lot from a different address, they shall indemnify and hold the Buyer harmless from any costs suffered by the Buyer (such as, but not limited to, import taxes and levies) that would not have been suffered by the Buyer if the Lot had been shipped from the address stated in the Seller’s Account.
10.4 All Lots sold must be sent using Track & Trace. Furthermore, we strongly recommend using registered and/or insured transport. The Seller will bear the risk of damage to and/or loss of the Lots during shipment.
10.5 The address that the Buyer has indicated will be deemed the delivery location.
10.6 Niamba’s is entitled to deem the signature for receipt and/or Track & Trace delivery confirmation at the delivery location to be proof of receipt by the Buyer. The Seller accepts that Niamba’s is entitled not to accept any other proof of receipt. This provision does not in itself grant any rights to the Seller. If a Lot does not arrive properly, the Buyer and Seller are obliged to cooperate in an investigation by the transport agency in the event they fail to reach a solution amongst themselves. A running investigation does not prejudice the right of Niamba’s to decide whether the Purchase Price will be refunded to the Buyer or will be paid on to the Seller.
10.7 In the event that the Seller fails to properly, completely and timely comply with his obligation to deliver, even after he has been given proper notice of default, the Seller will be in default and the Buyer will be entitled to dissolve the Contract of Sale. Without being obliged to do so, Niamba’s may send the notice of default and the notice of dissolution to the Seller on behalf of the Buyer. In that context, the Seller’s obligations will include compensating the Buyer’s damage, without prejudice to any other right, in which case the Seller, not Niamba’s, will be obliged to reimburse the Buyer with any Purchase Price that it has already received.
10.8 Dissolution of the Contract of Sale as a result of the Seller’s failure to comply with his obligation to deliver (which includes, but is not limited to, failure to deliver a Lot in accordance with the lot description) will not affect the Seller’s liability to pay the Seller’s Commission. In such event the Seller will be liable for any and all damage and costs that Niamba’s sustains and/or incurs as a result, which in any event will be equal to the amount of the Buyer’s Commission that Niamba’s has missed out on. More over the Seller will forfeit to Niamba’s an immediately payable penalty of 15% of the Purchase Price, with a minimum of £ 1,000 (one thousand pounds). The penalty is not subject to (judicial) mitigation.
10.9 Niamba’s will be entitled to set off the amount referred to in Article 10.8 against any Purchase Price to be paid out to the Seller.
10.10 The Buyer will be obliged to accept delivery or agree on pick-up of the Lot within the term stipulated on the Online Platform. If no term is indicated or agreed, the Buyer will be obliged to accept delivery of or pick-up the Lot within a reasonable term; in no event will that term exceed four weeks (as from the day on which the Online Auction in question closed).
10.11 In the event that the Contract of Sale is dissolved due to the Buyer’s failure to comply with his obligations to accept and cooperate with delivery or pick-up, that will not affect the Buyer’s liability to pay the Buyer’s Commission. In such event, the Buyer will be liable for any and all damage and costs that Niamba’s sustains and/or incurs as a result, which in any event will be equal to the amount of the Seller’s Commission that Niamba’s has missed out on. Moreover, the Buyer will forfeit to Niamba’s an immediately payable penalty of 09% of the Purchase Price.
10.12 Niamba’s will be entitled to set off the amount referred to in Article 10.11 against the Purchase Price to be refunded to the Buyer.
10.13 Notwithstanding the provisions stipulated in Article 11.3, the Buyer acknowledges and accepts that special rules and/or conditions may apply with respect to the import of Lots in connection with a cross-border Contract of Sale, including – but not limited to – customs duties, VAT, import levies and clearing charges. The Buyer must take note of such rules before the Contract of Sale is concluded. The Buyer will be obliged to pay any and all additional costs in this regard.
10.14 Any complaints and disputes between the Seller and the Buyer must be reported to Niambas as quickly as possible. Although, in principle, the Buyer and the Seller must resolve disputes between themselves, if necessary Niambas will make reasonable efforts to mediate between the Seller and the Buyer. If the Seller and the Buyer are unable to agree on a solution and Niambas is still in possession of the Purchase Price, the Seller and the Buyer hereby accept that Niambas will have the final say and may decide whether the Purchase Price will be refunded to the Buyer or will be paid on to the Seller. In that context Niambas will not be liable to compensate any damage or pay any other compensation to the Buyer or the Seller.
11 Use of the Service
11.1 Each use of the Service and the Online Platform is for the risk, account and responsibility of the User.
11.2 By placing User Material on the Online Platform or making it available via the Service, the User guarantees that: (i) He is authorised to do so and entitled to grant the rights to Niambas as referred to in these Terms and Conditions. (ii) The User Material that he makes available: a) Is not misleading, Is not discriminatory with regard to appearance, race, religion, sex, culture, descent or otherwise offensive, does not call for violence against and/or the harassment of another person or other people and, in Niambas’s opinion, is not in conflict with public morality or good taste, is not violent, does not contain a link to pornographic material or pornographic websites and does not promote committing illegal activities; b) Does not contain the personal data of others; c) Does not consists of chain letters, junk mail or spam and does not contain links to websites, commercial or otherwise; d) Cannot have a negative effect on the reputation or good name of Niambas and its affiliated companies and/or its directors; e) Is not in conflict with any laws or regulations or with these Terms and Conditions, does not infringe any rights of third parties, including rights from agreement, Intellectual Property Rights, privacy rights or is otherwise unlawful towards third parties or Niambas; and (iii) Niambas will not be obliged to perform any payment, taxation, levy or deduction of any nature whatsoever to anyone as a result thereof, including to persons or parties whose work, model, brand or performance is included in the User Material, including to collective rights organisations.
11.3 In using the Service, the User is obliged to comply with all applicable national, European and international regulations – including but not limited to – in respect of his activities regarding the bidding on, offering, purchasing and selling of Lots via the Online Platform.
11.4 The User will not process personal data of other Users without permission from the User in question, such as including Users in a mailing list without express permission or approaching them for such at his own initiative. The User will not use the contact data of other Users to send them unsolicited communications. The User owes an immediately payable penalty of £ 1,000 (one thousand pounds) to Niambas for each breach of this provision.
11.5 In using the Service, the User guarantees that he: (i) Will not circumvent or manipulate the Online Platform and the payment process, such as by directly contacting other Users or third parties to conclude a purchase agreement outside of Niambas. On breach of this provision all Users involved in such circumvention or manipulation are severally liable for all damage and costs incurred by Niambas as a result, which in any case includes the amount in Buyers’ and Sellers’ Commission Niambas missed out on if the Lot has been sold;
11.6 The User owes an immediately payable penalty of £ 1,000 (one thousand pounds) to Niambas for each breach of Article 11.5 and for each day, including part of the day, that such a breach continues, without prejudice to Niamba’s right to recover the actual damage.
12 User Material
12.1 The User retains all Intellectual Property Rights to his User Material, but hereby grants Niambas a free, unencumbered, global, non-exclusive, perpetual and irrevocable licence to communicate his User Material to the public and/or to reproduce it for all purposes Niambas deems necessary, including – but not limited to – promotional purposes. This licence does not end when the User or Niambas removes the User’s Account and/or the User discontinues the use of the Service.
12.2 Under the aforementioned licence, the User grants Niambas, among other things, but without exclusion, (I) the right to (automatically) translate his User Material (or have it translated), (ii) the right to print and/or use his User Material in (social) media and (iii) the right to use his User Material for promotional purposes.
12.3 The User hereby waives his moral rights to User Material, in so far as applicable and in so far as possible.
12.4 The User understands and accepts that he is responsible and accountable for User Material he places on the Online Platform or makes using the Service.
12.5 The User understands and accepts that Niambas is under no obligation to check or (re)view User Material of other Users. Niambas has no knowledge of the contents of such User Material and is therefore not responsible and/or accountable therefor.
13 Service Availability and interruption
13.1 Niambas does not guarantee that the Service and all parts of the Service and/or the Online Platform are always available and without interruptions or failures. Failures in the Service can occur, but not exclusively, as a result of failures in the internet or telephone connection or due to viruses or faults/defects. Niambas is in no way liable or liable for compensation towards the User for any damage resulting from the (temporary) inaccessibility or (interim) failure of the Service and/or the Online Platform.
13.2 Niambas is at all times authorised, without prior notice, to make procedural, technical, commercial or other changes and/or improvements to the Service and/or the Online Platform, to put the Service and/or the Online Platform (temporarily) out of operation and/or to limit the use of the Service and/or the Online Platform if this is necessary in its opinion, for example in the context of reasonably necessary maintenance to the Service and/or the Online Platform.
14 Intellectual Property Rights the Intellectual Property Rights in respect of the Online Platform, the Service, the Information and the database, including – but not limited to – the Intellectual Property Rights to the texts, images, design, photos, software, audio visual material and other material lie with Niambas or its licensors.
15 The Artist Resale Right
15.1 The Artist’s Resale Right (ARR) entitles creators (‘authors’) of original works of art (including paintings, engravings, sculpture and ceramics) to a royalty each time one of their works is resold through an auction house or art market professional. The right to this royalty lasts for the same period as copyright, so since January 2012 ARR has applied to qualifying works by artists who have been dead for less than 70 years.
15.2 Exemption Some sales are exempt. For example, where the work being resold was bought directly from the artist less than three years previously and it is being resold for €10,000 or less. This is generally known as the ‘bought as stock exception’. Calculation of royalties ARR derives from a European Directive and came into force in the UK in 2006.The right only applies when the sale price reaches or exceeds the sterling equivalent of €1,000 and is calculated on a sliding scale. Royalty Resale price 4% up to €50,000 3% between €50,000.01 and €200,00 1% between €200,000.01 and €350,000 0.5% between €350,000.01 and €500,000 0.25% in excess of €500,000 Royalties are also capped so that the total amount of the royalty paid for any single sale of a work cannot exceed €12,500. ARR is exempt of VAT.
15.3 If a Lot is an original artwork, resale royalties may be due to the artist pursuant to applicable copyright legislation. In those cases, the Buyer shall bear the cost of the resale royalty, regardless of whether the Buyer is an art market professional or not. Hence, the Buyer shall either pay the resale royalty directly to the artist or the artist’s representative or, upon first request, shall reimburse the party that has paid the resale royalty to the artist or the artist’s representative. Such reimbursement shall include the full resale royalty and any related costs, expenses, levies or taxes.
16 Database
16.1 The collection of (personal) data of Users, including User Material and Information, that is collected by Niamba’s and displayed on the Online Platform is a legally protected database. Niamba’s is the producer of the database and therefore has the exclusive right to grant permission for i) the extraction or re-utilization of the entirety or a substantial part, from a quantitative and/or qualitative point of view, of the contents of the database and ii) the repeated and systematic extraction or re-utilization of non-substantial parts, from a quantitative and/or qualitative point of view, of the contents of the database, in so far as this is in conflict with the normal operation of the database or causes unjustified damage to Niamba’s lawful interests. The User may only request or reuse data from the database if and in so far as this is permitted under these Terms and Conditions.
17 Privacy
17.1 When creating an Account and using the Service, the User will provide (personal) data to Niambas. These (personal) data will be saved and processed in accordance with the Niambas Privacy Policy and applicable laws and regulations.
18 Liability
18.1 Niamba’s accepts no liability whatsoever for damage resulting from the provision of the Service, including – but not limited to – damage resulting from or in connection with the use of the Online Platform and/or the Service or from wrongful acts or otherwise, in so far as this is permitted pursuant to mandatory law.
18.2 Niamba’s accepts no liability for any use of services, products, applications or websites made available by a Third-Party Services Provider, such as shipping and payment services and/or any issues between a User and any Third-Party Service Provider. It is a User’s responsibility to read the terms and conditions and/or privacy policies of such Third-Party Services Providers before using them.
18.3 Niambas can among other things never be held liable for any damage suffered as a result of the conclusion of a Contract of Sale by a Buyer or Seller, including – but not limited to – damage that ensued because the User concluded unfavourable agreements, for example because more or less money was paid for the purchased Lots than the expected value.
18.4 If and in so far as Niambas would be liable for damage for any reason whatsoever, its liability is in any case limited to the highest of the following amounts: (I) the total commissions received by Niambas from the User in question in the period of three months prior to the action that led to liability.
18.5 This limitation of liability does not intend to exclude the liability of Niemba’s for gross negligence or wilful misconduct of Niemba’s itself (“own actions”) and/or its management.
18.6 A condition for any right to compensation to arise is always that the User reports the damage to Niambas in writing as soon as possible after first appearance of the damage. Each claim for compensation against Niambas expires by the mere lapse of twelve months after first appearance of the damage.
18.7 This Article also covers all companies affiliated with Niambas as well as its management, directors, employees, representatives and legal successors.
19 Miscellaneous, applicable law and competent court
19.1 The Terms and Conditions, the use of the Service and the Online Platform, any disputes as well as all Contracts of Sale between Sellers and Buyers, are governed by British law.
19.2 All disputes that arise between the User and Niambas will be submitted to the competent court in the United Kingdom.
20. Data Protection
20.1 In connection with sales (auction or Buy Now) on the Site and related services, or as required by law, Niamba’s may ask you to provide personal data. Niamba’s may take and retain a copy of government-issued identification such as a passport or driver’s license. We will use your personal data (i) to sell to you and provide related services; (ii) to enforce these Conditions of Business and Additional Terms; (iii) to carry out identity and credit checks; (iv) to implement and improve the management and operations of our business and (v) for other purposes set out in our Privacy Policy published on the Niamba’s website at http://niambas.com/privacy (the “Privacy Policy”). By agreeing to these Conditions of Business, you consent to our use of your personal data, including sensitive personal data, in accordance with the Privacy Policy. The personal data we may collect, and process is listed, and sensitive personal data is defined, in our Privacy Policy. Niamba’s may also, from time to time, send you material about us and our services or other information which we think you may find interesting. If you would prefer not to receive such information, please email us at support@niambas.com.
20.2 In order to provide our services, we may disclose your personal data to third parties, including professional advisors, shippers and credit agencies located anywhere in the world, including to countries which may not offer equivalent protection of personal information to that offered in the country where you reside. We will disclose, share with and transfer your personal data to Niamba’s affiliated persons (natural or legal) for administration, sale, auction, payment and shipping related purposes. You expressly consent to such transfer of your personal data. We will not sell, rent or otherwise transfer any of your personal data to third parties except as otherwise expressly provided our Privacy Policy. You can prevent us from using your personal data for marketing purposes at any time by notifying us at support@niambas.com.
21. Copyright
The copyright in all images, illustrations and written materials produced by or for Niamba’s relating to a lot, including the contents on the Site, is and shall always remain the property of Niamba’s and such images and materials may not be used by you or any other party without our prior written consent. Niamba’s and the Seller make no representations or warranties that the buyer of a lot will acquire any copyright or other intellectual property rights in the lot.
22. Restriction on Resale
22.1 The buyer of a lot on the Site shall not offer the lot for sale until the lot is paid for and physically delivered to the buyer or the buyer’s designated agent.
22.2 Lots may be subject to a resale restriction for one (1) year or for some other period indicated in the lot description posted on the Site. The buyer agrees that if the lot becomes available for sale within one (1) year or such other period indicated in the lot description from the date of purchase, the lot will be offered first to the artist or the Seller at the fair market value. The artist or the Seller reserves the right to decline to purchase the lot at the fair market value.
23. Returns
When an item is returned, to refund the buyer, you authorise Niambas to request PayPal or stripe connect to reverse the refund amount (in the same or other currency) from your PayPal or stripe connect account, and place the amount on your seller invoice as a fee (which may be charged to your automatic payment method on file). If the buyer returns an item because it does not match the listing description, sellers will usually be responsible for return postage costs.
The cost of return shipping for an item that is not as described is the seller’s responsibility.
When a transaction is cancelled, and you choose to refund the buyer via Niambas, you authorise Niambas to request PayPal or stripe connect to reverse the refund amount (in the same or other currency) from the seller’s PayPal or stripe connect account, to the buyer.
24. Contact
23.1 For questions about the Service, the Online Platform or these Terms and Conditions, you can always contact Niambas via the following contact information:
support@niambas.com.
