Conditions of Business - Professional Services
|
TERMS OF BUSINESS – PROFESSIONAL SERVICES
These Terms of Business govern the provision of professional services by Robert Upstone Ltd ("we", "our" or "us") and form part of every engagement between us and the Client. We provide specialist professional services relating to works of art and collections, including valuations for probate, insurance and other purposes; advice concerning Acceptance in Lieu and other cultural property matters; art-historical research and advice; collection and market advice; and related consultancy services. Our advice reflects our professional judgement based upon the scope and purpose of the particular engagement, the information reasonably available to us and, where relevant, the state of the art market and scholarship at the date of the advice. These Terms of Business are intended to define clearly the basis upon which our services are provided, the purposes for which our advice may be used and the respective responsibilities of us and the Client. 1. APPLICATION OF THESE TERMS 1.1 These Terms of Business apply to all professional services provided by us unless expressly agreed otherwise in writing. 1.2 An engagement may be confirmed by email, letter or other written communication. It is not necessary for the Client to sign a formal engagement letter unless we expressly require one. 1.3 The particular scope and purpose of an engagement may be set out in our correspondence with the Client, a covering letter accompanying a valuation or report, the valuation or report itself, or other written terms agreed between us and the Client. 1.4 These Terms of Business, together with the written terms referred to in clause 1.3, constitute the agreement between us and the Client in relation to the engagement. 1.5 Where a particular engagement contains written terms which are inconsistent with these Terms of Business, those particular terms shall prevail to the extent of the inconsistency. 1.6 No oral statement, discussion or communication shall extend the scope of an engagement or impose any additional obligation upon us unless subsequently confirmed by us in writing. 1.7 The Client shall be treated as having accepted these Terms of Business upon the first occurrence of any of the following: (a) instructing us to commence or continue work after receiving, or being directed to, these Terms of Business; (b) providing information, documents, photographs or other material for the purposes of the engagement; (c) accepting or making use of any advice, valuation, report or other work produced by us; (d) paying any invoice relating to the engagement; or (e) otherwise acting in a manner consistent with the existence of the engagement. 1.8 No variation of these Terms of Business shall be effective unless agreed by us in writing. 1.9 Any concession, indulgence or waiver granted by us in relation to a particular engagement shall apply only to that engagement and shall not constitute a continuing waiver of any provision of these Terms of Business. 1.10 Where the Client is a Consumer and the engagement is entered into at a distance or away from our business premises, the Client may have a statutory right to cancel the engagement within 14 days without giving any reason. 1.11 Where a statutory right to cancel applies, the cancellation period will ordinarily expire 14 days after the engagement is entered into. The Client may exercise that right by informing us clearly of their decision to cancel. A model cancellation form will be made available to the Client, but its use is not obligatory. 1.12 If the Client wishes us to begin providing the services during the cancellation period, the Client must expressly request that we do so. 1.13 Where the Client has expressly requested that we begin providing the services during the cancellation period and subsequently exercises a statutory right to cancel, the Client shall pay us an amount proportionate to the services properly performed up to the time when we are informed of the cancellation, to the extent permitted by applicable law. 1.14 Where, at the Client's express request, the services have been fully performed during the cancellation period, the Client's statutory right to cancel may be lost where the requirements of applicable consumer law for loss of that right have been satisfied. 1.15 Nothing in these Terms affects any statutory cancellation or other consumer right which cannot lawfully be excluded or restricted. 2. THE CLIENT 2.1 The Client is the person or persons identified as such in our written confirmation of the engagement, correspondence, covering letter, valuation, report or invoice. 2.2 Where we are instructed by executors or personal representatives of an estate, the Client shall be the executor or executors, or personal representative or representatives, identified in our written correspondence or report, unless expressly agreed otherwise. 2.3 Our professional duties are owed to the Client alone. No other person shall become our client merely because that person: (a) has an interest in the Work or property which is the subject of our advice; (b) is a beneficiary, trustee, family member, creditor or other person interested in an estate or collection; (c) receives or is shown a copy of our valuation, report or advice; (d) contributes to or pays our fees; or (e) is entitled or required to receive our valuation, report or advice for the stated purpose of the engagement. 2.4 Where our engagement expressly contemplates that a valuation, report or other document will be submitted to HM Revenue & Customs, the Probate Registry, Arts Council England, the Acceptance in Lieu Panel, a government department, museum, insurer or other authority or institution, the Client may submit it for that stated purpose. 2.5 Permission to submit, disclose or provide our work to another person, authority or institution does not, of itself, create a contractual relationship, duty of care or other professional responsibility on our part to that recipient or to any other third party. 2.6 No third party may rely upon our advice, valuation, report or other work without our prior written consent, except to the extent that such reliance cannot lawfully be excluded. 3. SCOPE OF THE ENGAGEMENT 3.1 The nature, scope and purpose of our services shall be those expressly identified in our written correspondence, covering letter, valuation, report or other written confirmation of the engagement. 3.2 Our responsibilities are limited to the matters falling within the agreed scope of the engagement. We are not responsible for advising upon matters outside that scope merely because they arise in connection with the same Work, collection, estate, transaction or project. 3.3 Where the engagement is undertaken for a specified purpose, our work is prepared solely for that purpose and should not be used or relied upon for a different purpose without our prior written agreement. 3.4 In particular, a valuation prepared for one purpose, including probate, insurance, taxation, sale, acquisition or Acceptance in Lieu, should not be assumed to represent the appropriate value for any other purpose. 3.5 Unless expressly included within the engagement, we do not undertake responsibility for: (a) legal advice; (b) tax advice; (c) investment or financial advice; (d) conservation or scientific examination; (e) verification of legal title or ownership; (f) verification of export, import or other regulatory status; (g) advice concerning matters outside our professional expertise; or (h) any other service not expressly falling within the agreed scope of the engagement. 3.6 The fact that we become aware of a matter falling outside the agreed scope of the engagement shall not, of itself, impose upon us a duty to investigate or advise upon that matter. 3.7 Where circumstances arise which make additional work desirable or necessary, we may discuss an extension of the engagement with the Client. We shall not be obliged to undertake that additional work unless agreed between us. 3.8 Our engagement is to exercise reasonable skill and care in providing the agreed professional services. Unless expressly agreed otherwise in writing, we do not undertake to achieve any particular result or outcome. 3.9 Any timetable for completion is an estimate unless expressly agreed otherwise in writing. We shall use reasonable endeavours to perform the services within any anticipated timetable but shall not be responsible for delay arising from circumstances beyond our reasonable control. 3.10 Unless expressly agreed otherwise, our engagement ends when we have completed the services falling within its agreed scope. We are not under a continuing obligation thereafter to monitor changes in the art market, scholarship, law, taxation, government policy or other circumstances, or to update advice previously given. 4. NATURE OF OUR PROFESSIONAL ADVICE 4.1 The valuation and study of works of art necessarily involve the exercise of professional judgement. Opinions concerning value, attribution, dating, condition, provenance, quality, significance, rarity, marketability and related matters are not statements of mathematical or objectively ascertainable fact. 4.2 Our advice represents our honestly held professional judgement based upon the information reasonably available to us, our specialist knowledge and experience and the circumstances existing at the date of the advice. 4.3 The existence of a different opinion held or subsequently expressed by another valuer, dealer, auction house, scholar, curator, conservator or other specialist does not, of itself, establish that our advice was incorrect or negligently given. 4.4 Our advice should be considered as a whole and in the context of the purpose, assumptions, qualifications and limitations stated in the relevant correspondence, valuation or report. No individual statement should be considered in isolation from that context. 4.5 Unless expressly agreed otherwise in writing, our advice does not constitute a guarantee, warranty or representation that: (a) a Work will realise a particular price if offered for sale; (b) another valuer, dealer or auction house will reach the same valuation or opinion; (c) an insurer, HM Revenue & Customs, the Acceptance in Lieu Panel, Arts Council England, a government department, museum or other person or authority will accept our valuation or opinion; or (d) any particular transaction, application, negotiation or other process will achieve a particular outcome. 4.6 Nothing in these Terms of Business excludes or limits any responsibility which cannot lawfully be excluded or limited. 5. INFORMATION AND MATERIAL PROVIDED BY THE CLIENT 5.1 The Client shall provide us with such information, documents, photographs and other material as we may reasonably require for the purposes of the engagement. 5.2 Unless we have reason to believe otherwise, we shall be entitled to assume that information and material supplied by or on behalf of the Client is complete and accurate and may rely upon it without independent verification. 5.3 The Client shall draw to our attention any matter of which they are aware which may reasonably be relevant to our advice, including, where applicable: (a) information concerning ownership and provenance; (b) previous valuations, sales or offers for sale; (c) relevant invoices, receipts, correspondence or other documentation; (d) known questions concerning attribution or authenticity; (e) known damage, restoration, conservation or alteration; (f) restrictions affecting ownership, possession, sale, export or other disposition of a Work; and (g) any other information which may reasonably be material to the purpose of the engagement. 5.4 We shall not be responsible for any loss arising from information supplied by or on behalf of the Client which is inaccurate, incomplete, misleading or withheld from us, except to the extent that the inaccuracy or omission was or ought reasonably to have been apparent to us in the course of carrying out the agreed services. 5.5 Unless expressly included within the engagement, we are not required independently to verify information supplied by the Client or by third parties. 5.6 Where our advice is based upon an assumption which we consider material, we may identify that assumption in our correspondence, valuation or report. 5.7 If an assumption or information upon which our advice was based subsequently proves to have been materially inaccurate or incomplete, our advice may no longer be applicable. We shall not be responsible for revising or updating it unless separately instructed to do so. 6. VALUATIONS AND BASIS OF VALUE 6.1 A valuation is an expression of our professional opinion of the appropriate value of a Work or collection at a specified date and for the particular purpose and on the particular basis stated in the valuation, covering letter or other written terms of the engagement. 6.2 The appropriate basis of value may differ according to the purpose for which the valuation is required. A valuation for probate, insurance, sale, acquisition, Acceptance in Lieu or any other purpose should not be assumed to represent the value appropriate for another purpose. 6.3 Unless expressly stated otherwise, a valuation is not: (a) a guarantee of the price which a Work will realise if offered for sale; (b) a prediction of its future value; (c) an offer by us or any other person to purchase the Work at the stated value; (d) a representation that the Work can be sold immediately, or within any particular period, at the stated value; or (e) a guarantee that another appropriately qualified valuer or market participant would reach the same conclusion. 6.4 In forming a valuation we may take account of such matters as we consider relevant, including, where appropriate: (a) prices achieved at public auction; (b) prices sought or achieved by dealers and galleries; (c) private sales and other non-public market information; (d) the artist's market and the market for comparable works; (e) attribution, date, medium, dimensions, subject matter, quality, rarity and condition; (f) provenance, exhibition history and published literature; (g) current demand, marketability and prevailing market conditions; and (h) our own professional knowledge, experience and judgement. 6.5 Comparable works and transactions are rarely identical. The selection, relevance and interpretation of market evidence, and the weight to be attached to it, are matters of professional judgement. 6.6 We may take account of confidential information concerning private sales, negotiations, offers or other market activity. We shall not be required to identify the parties to, or disclose confidential details of, any such transaction or information in order to substantiate our professional judgement. 6.7 Values in the art market may change, sometimes materially, as a result of market conditions, economic circumstances, changes in taste, scholarship, attribution, condition, provenance, supply, demand or other factors. 6.8 A valuation therefore speaks only as at its stated valuation date. Unless separately instructed, we undertake no responsibility to monitor subsequent changes in value or to update the valuation. 6.9 The fact that a Work is subsequently sold, offered for sale or valued by another person at a price or value different from our valuation does not, of itself, establish that our valuation was incorrect or negligently prepared. 7. INSPECTION AND CONDITION 7.1 Where our engagement includes physical inspection, we shall undertake such visual examination of the Work as we consider reasonably appropriate for the stated purpose of the engagement. 7.2 Unless expressly agreed otherwise in writing, our inspection is visual and non-invasive. We do not undertake scientific or technical examination, conservation analysis or other invasive investigation. 7.3 Unless we consider it reasonably necessary for the agreed purpose and have agreed to do so, we do not: (a) remove a Work from its frame or mount; (b) remove backboards, linings, fixings or other components; (c) dismantle furniture, sculpture or other objects; (d) undertake ultraviolet, infrared, X-ray, pigment or other scientific analysis; (e) take samples; or (f) undertake any procedure which may alter, damage or interfere with the Work. 7.4 We are not conservators. Any observations we make concerning condition are expressions of our professional opinion insofar as condition is reasonably apparent to us and relevant to the purpose of the engagement. 7.5 Our observations concerning condition do not constitute a conservation report, structural survey or guarantee of condition and should not be relied upon as a substitute for examination by an appropriately qualified conservator or other specialist where such examination is required. 7.6 Works of art may contain defects, restoration, conservation, repair, alteration or deterioration which are not apparent upon reasonable visual inspection. We shall not be responsible for identifying latent or concealed matters which could not reasonably have been identified within the agreed scope and method of our examination. 7.7 Where we consider specialist examination desirable, we may recommend that the Client obtain advice from an appropriately qualified conservator, scientist or other specialist. Unless expressly agreed otherwise, responsibility for deciding whether to obtain such advice remains with the Client. 8. DESKTOP AND REMOTE ADVICE 8.1 We may, where appropriate and agreed with the Client, provide a valuation, preliminary opinion or other advice without physically inspecting the Work. 8.2 Where advice is based upon photographs, measurements, descriptions, documents or other information supplied to us, our ability to assess the Work may be materially more limited than following physical inspection. 8.3 In particular, photographs and other remote material may not enable us adequately to assess condition, surface, texture, colour, scale, construction, alterations, restoration, inscriptions, labels, framing or other physical characteristics which may materially affect value or our opinion of the Work. 8.4 Any desktop or remote valuation or advice is therefore necessarily subject to the accuracy and completeness of the material supplied to us and to the limitations inherent in not having physically inspected the Work. 8.5 Where condition cannot adequately be assessed without physical inspection, the valuation or advice proceeds subject to that limitation. Condition may materially affect value. 8.6 We may qualify a desktop valuation or opinion, recommend physical inspection before it is relied upon for a particular purpose, or decline to provide a definitive opinion where we consider the available information insufficient. 8.7 If we subsequently inspect the Work, we may revise any earlier desktop valuation or opinion in light of matters apparent upon physical examination. The fact that our opinion changes following physical inspection shall not, of itself, indicate that the earlier opinion was incorrectly or negligently formed. 9. ATTRIBUTION, AUTHENTICITY, PROVENANCE AND SCHOLARSHIP 9.1 Unless expressly included within the scope of the engagement, we do not undertake a separate authentication service or guarantee the authenticity or attribution of a Work. 9.2 Where attribution, dating, authenticity, provenance or related scholarly matters are relevant to our engagement, any opinion expressed by us represents our honestly held professional judgement based upon the information reasonably available to us and the state of scholarship at the date of the advice. 9.3 In forming such an opinion we may take account, where appropriate, of provenance, inscriptions, labels, exhibition history, published literature, catalogues raisonnés, archival material, previous expert opinions, our examination of the Work and our own specialist knowledge and experience. 9.4 Unless expressly included within the engagement, we do not undertake: (a) scientific or technical analysis; (b) exhaustive archival or provenance research; (c) independent verification of every element of a stated provenance, exhibition history or published reference; (d) verification of legal title or ownership; or (e) investigation of whether a Work has at any time been stolen, unlawfully exported or otherwise subject to a third-party claim. 9.5 Where information concerning provenance, exhibition history, literature, attribution or ownership has been supplied by the Client or a third party, we may rely upon that information in accordance with clause 5. 9.6 Scholarship concerning works of art may develop. New documentary evidence, technical analysis, archival research or scholarly opinion may subsequently become available and recognised opinions may change. 9.7 The subsequent expression of a different opinion by a scholar, curator, catalogue raisonné author, artist's estate, foundation, authentication committee, conservator, scientist or other appropriately qualified specialist shall not, of itself, establish that an opinion previously expressed by us was incorrect or negligently formed. 9.8 Similarly, the subsequent inclusion, exclusion, reattribution or amendment of a Work in a catalogue raisonné, scholarly publication, archive or other recognised body of scholarship shall not, of itself, establish that our earlier advice was incorrect or negligently given. 9.9 Unless separately instructed, we undertake no continuing obligation following completion of the engagement to monitor developments in scholarship, attribution, provenance or other research or to notify the Client if an opinion concerning the Work subsequently changes. 9.10 Nothing in this section excludes or limits any responsibility which cannot lawfully be excluded or limited. 10. USE, DISCLOSURE AND RELIANCE 10.1 Our valuation, report, advice and other work are prepared for the Client, for the purpose and on the basis stated in the engagement. 10.2 The Client may use our work for that stated purpose and may disclose it to such persons, authorities or institutions as is reasonably necessary for that purpose. 10.3 In particular, where appropriate to the stated purpose of the engagement, the Client may provide our work to: (a) HM Revenue & Customs; (b) the Probate Registry; (c) Arts Council England, the Acceptance in Lieu Panel, Ministers or other government departments or public authorities; (d) museums, galleries and other cultural institutions; (e) the Client's solicitors, accountants, tax advisers, insurers and other professional advisers; and (f) such other persons as we expressly agree in writing. 10.4 Permission to disclose our work does not constitute permission for the recipient to rely upon it for any purpose other than the purpose for which disclosure is expressly contemplated. 10.5 Our professional duties are owed to the Client. Except where expressly agreed by us in writing or where liability to a third party cannot lawfully be excluded, no person other than the Client shall acquire any right to rely upon our work or bring any claim against us merely because they have received, reviewed or acted upon it. 10.6 The Client shall not, without our prior written consent: (a) use a valuation or report for a purpose materially different from that for which it was prepared; (b) alter the substance of our valuation, report or advice; (c) reproduce or quote from it in a manner which is misleading or takes our opinion out of context; or (d) represent that we have given an opinion or undertaken work beyond the scope of the engagement. 10.7 Where only part of a report or valuation is reproduced or disclosed, it must not be presented in a manner which omits qualifications, assumptions or other information necessary for a proper understanding of our opinion. 10.8 Our consent to a different use of our work may be made subject to further review, updating of the advice, additional fees or such other conditions as we reasonably consider appropriate. 10.9 No person may rely upon a valuation after its stated valuation date as evidence of the value of the Work at a later date without our prior written agreement. 11. PROBATE AND ESTATE VALUATIONS 11.1 Where we are instructed to prepare a valuation for probate, inheritance tax or estate administration purposes, the valuation shall be prepared for the particular statutory or administrative purpose stated in our engagement, covering letter or report. 11.2 Unless expressly stated otherwise, a probate valuation represents our professional opinion of the open market value of the property at the relevant date of death on the applicable statutory basis. In forming that opinion we may have regard to auction estimates and results, dealer and private-market evidence and such other market information as we consider relevant. The valuation should not be treated as an insurance or retail replacement valuation, a dealer asking price, a prediction of the price which the property will subsequently realise if sold, or a valuation for any other purpose. 11.3 The executors or personal representatives may submit our valuation and accompanying report to HM Revenue & Customs, the Probate Registry and their professional advisers for the stated purpose of administering the estate and determining any relevant tax liability. 11.4 The fact that our valuation is submitted to HM Revenue & Customs, the Probate Registry or another authority does not make that authority our client or create a separate contractual relationship between us and that authority. 11.5 Valuation is an exercise of professional judgement. HM Revenue & Customs or another authority may request further information, seek its own advice, propose a different value or otherwise question a valuation submitted to it. 11.6 The fact that the property is subsequently sold for more or less than our valuation, or that HM Revenue & Customs, another authority, another valuer or any interested party subsequently proposes or agrees a different value, does not, of itself, establish that our valuation was incorrect or negligently prepared. 11.7 Where requested and separately agreed, we may provide further information, respond to questions or assist the Client and their professional advisers in connection with enquiries raised by HM Revenue & Customs or another authority. Unless expressly included within the original engagement, such work constitutes additional professional services and will be charged accordingly. 11.8 Our probate and estate valuation services do not constitute legal or tax advice. The Client remains responsible for obtaining advice from appropriately qualified legal and tax advisers concerning the preparation of probate applications, tax returns, availability of exemptions or reliefs, calculation of tax and other legal or taxation matters. 11.9 Unless expressly included within the engagement, we do not undertake responsibility for identifying every asset forming part of an estate, determining legal ownership of any Work, resolving competing claims to ownership or determining whether property is subject to any trust, charge, lien or other legal interest. 11.10 Where the Client instructs us to value only specified Works or categories of property, our responsibility is limited to the property falling within that instruction. 11.11 Any subsequent sale, distribution, appropriation or other disposal of a Work is a separate matter. A probate valuation should not be relied upon as advice as to an appropriate sale price or method of disposal without further advice from us. 12. ACCEPTANCE IN LIEU: PRELIMINARY ADVICE AND VALUATION 12.1 We may be instructed to provide preliminary advice concerning the possible suitability of a Work, collection or other cultural property for an offer in lieu of inheritance tax or other tax under the Acceptance in Lieu scheme. 12.2 Such an engagement may include, where expressly agreed: (a) examination and assessment of the property; (b) research into provenance, attribution, exhibition history, published literature and art-historical significance; (c) advice concerning the potential pre-eminence of the property; (d) valuation; (e) preliminary advice concerning the possible suitability of the property for Acceptance in Lieu; (f) consideration of potential receiving institutions; and (g) discussions with the Client and the Client's legal, tax or other professional advisers. 12.3 Any opinion expressed by us concerning whether property may satisfy the applicable criteria for Acceptance in Lieu represents our professional judgement at the date of the advice. Decisions concerning pre-eminence, acceptance, valuation and the other requirements of the scheme are matters for the relevant public authorities and decision-makers. 12.4 Accordingly, an opinion by us that property appears suitable, or potentially suitable, for Acceptance in Lieu does not constitute a representation, warranty or guarantee that: (a) the property will be regarded as pre-eminent; (b) an offer will be accepted; (c) the valuation proposed by the Client will be accepted; (d) any particular tax credit or other fiscal consequence will result; (e) the property will be allocated to any particular institution; or (f) the process will be completed within any particular period. 12.5 The subsequent expression of a different view by Arts Council England, the Acceptance in Lieu Panel, HM Revenue & Customs, Ministers, a museum, another valuer or adviser, or any other person involved in the process does not, of itself, establish that our earlier advice was incorrect or negligently given. 12.6 Preliminary advice concerning Acceptance in Lieu does not constitute an instruction to prepare, submit or conduct an offer unless that further work is expressly agreed. 12.7 Advice concerning the tax consequences, legal structure or administration of an Acceptance in Lieu offer falls outside our professional expertise. The Client shall remain responsible for obtaining appropriate legal and tax advice. 13. ACCEPTANCE IN LIEU: PREPARATION AND CONDUCT OF AN OFFER 13.1 Where separately instructed, we may advise upon and assist with the preparation and conduct of an offer under the Acceptance in Lieu scheme. 13.2 The precise scope of such an engagement shall be agreed with the Client and may include: (a) preparation or assistance with the preparation of material concerning the property and its significance; (b) preparation of valuations and supporting market evidence; (c) liaison with the Client's legal and tax advisers; (d) liaison and correspondence with Arts Council England, the Acceptance in Lieu Panel, HM Revenue & Customs, museums, galleries and other relevant institutions or authorities; (e) responding to enquiries concerning the property, its valuation or significance; (f) advice concerning proposed valuation adjustments or other matters arising during consideration of the offer; (g) advice concerning potential allocation of accepted property; and (h) such other specialist art-historical or valuation work as is expressly agreed. 13.3 In providing these services, we act as specialist art advisers to the Client. Unless expressly agreed otherwise, we do not act as the Client's solicitor, tax adviser or general agent and do not assume responsibility for legal or taxation matters relating to the offer. 13.4 The Client and their legal and tax advisers remain responsible for the legal and taxation aspects of the offer, including determining the tax liability against which any offer is made, the availability and calculation of any tax credit, the legal ownership of the property and compliance with applicable statutory and procedural requirements outside the scope of our engagement. 13.5 We may make recommendations, advance arguments and communicate with relevant authorities and institutions on the Client's behalf where authorised to do so. Such activities do not amount to a guarantee that our recommendations or arguments will be accepted. 13.6 The assessment and determination of an Acceptance in Lieu offer are matters for the relevant authorities and decision-makers. We cannot control or guarantee: (a) whether an offer will be accepted; (b) whether property will be regarded as pre-eminent; (c) the value ultimately accepted for the purposes of the offer; (d) the amount of any tax credit or other fiscal benefit; (e) the institution to which property may ultimately be allocated; (f) the time taken to consider or determine an offer; or (g) any change in legislation, government policy, administrative practice or the operation of the scheme. 13.7 Where the relevant authority, panel, institution or other participant requests further information, research, valuation evidence, meetings or other work beyond the scope reasonably contemplated by the original engagement, that work may constitute additional professional services and be charged accordingly. 13.8 We shall be entitled to rely upon legal and taxation information supplied by the Client or the Client's professional advisers without independently verifying it unless verification expressly forms part of our engagement. 13.9 We shall not be responsible for loss arising from a decision, delay, omission or change of position by any government department, public authority, panel, museum, institution or other third party involved in the Acceptance in Lieu process, except to the extent that such loss results from a breach by us of our own obligations under the engagement. 13.10 Completion of our engagement in connection with an Acceptance in Lieu offer does not impose upon us any continuing responsibility for the property following acceptance or allocation unless separately agreed. 14. APPLICATIONS TO PUBLIC AUTHORITIES AND EXPORT LICENSING 14.1 Where expressly included within the engagement, we may prepare, assist with or advise upon applications to government departments, public authorities or other regulatory bodies, including applications for licences to export works of art or cultural property. 14.2 Our role in relation to any such application is limited to the professional services expressly agreed and may include the preparation of art-historical, valuation or other supporting information falling within our expertise. 14.3 The Client shall provide promptly all information, documents and authorities reasonably required for the application and shall be responsible for ensuring that information supplied by or on their behalf is complete and accurate. 14.4 The determination of any application is a matter for the relevant authority. We do not warrant or guarantee: (a) that an application will be granted; (b) that it will be determined within any particular period; (c) that conditions will not be imposed; (d) that further information or evidence will not be required; or (e) that legislation, policy, procedure or administrative practice will not change during the course of the application. 14.5 Where an application involves matters of law, taxation, customs, sanctions or other regulatory requirements outside our professional expertise, the Client remains responsible for obtaining appropriate specialist advice. 14.6 Any indication we give concerning the likely outcome or timetable of an application is an expression of professional judgement based upon the information and circumstances then available and does not constitute a guarantee. 14.7 We shall not be responsible for delay, refusal or other action by a government department, public authority or third party except to the extent that it results from a breach by us of our own obligations under the engagement. 15. GENERAL ADVISORY AND ART-HISTORICAL SERVICES 15.1 We may provide general professional advice concerning works of art, collections, artists, provenance, attribution, art history, the art market, acquisitions, disposals, collections management, museum matters and related subjects. 15.2 The scope and purpose of any such advisory engagement shall be determined in accordance with clause 3. 15.3 Art-historical research and advice necessarily depend upon the sources and information reasonably available at the time. Archival material, published scholarship, documentary evidence or other information may subsequently emerge which modifies or supersedes an earlier understanding. 15.4 Unless expressly agreed otherwise, we do not undertake exhaustive research of every potentially relevant archive, publication, database or other source. 15.5 Where we identify or recommend a possible course of action, acquisition, disposal, institution, specialist or other opportunity, the Client remains responsible for deciding whether to proceed and, where appropriate, for obtaining independent legal, tax, financial, conservation or other specialist advice. 15.6 Any opinion concerning the art market, marketability of a Work, likely purchaser interest, possible sale price or appropriate method of sale is an expression of our professional judgement at the date it is given and does not constitute a guarantee of a particular transaction or outcome. 15.7 Unless expressly agreed otherwise in writing, the provision of advice does not appoint us as the Client's agent for the purchase or sale of a Work and does not authorise us to enter into any transaction or incur any liability on the Client's behalf. 15.8 Any subsequent instruction to act in connection with a sale, purchase, consignment, introduction or other transaction shall be subject to separately agreed terms. 16. LEGAL, TAX, FINANCIAL AND OTHER SPECIALIST ADVICE 16.1 Our expertise is in art history, the art market, valuation and related cultural property matters. We do not provide legal, tax, accounting, investment or regulated financial advice. 16.2 References in our advice to legal, taxation, financial or regulatory matters are provided only insofar as they are relevant context for the professional services we have been instructed to provide and should not be relied upon as specialist advice in those fields. 16.3 The Client remains responsible for obtaining advice from appropriately qualified solicitors, tax advisers, accountants, financial advisers, conservators, scientists or other specialists where required. 16.4 Where we communicate or work with the Client's other professional advisers, this does not make us responsible for their advice or enlarge the scope of our own engagement. 16.5 We shall be entitled to rely upon specialist advice and information provided by the Client's other professional advisers where it is reasonable for us to do so. 17. CONFLICTS OF INTEREST AND OUR ART-DEALING ACTIVITIES 17.1 Robert Upstone Ltd carries on an art-dealing business in addition to providing professional valuation, advisory and consultancy services. 17.2 The Client acknowledges that, in the ordinary course of our business, we may: (a) act for other owners, collectors, buyers, sellers, estates, museums or institutions; (b) own or have a financial interest in works of art; (c) buy and sell works of art as principal; (d) act as agent or intermediary in transactions involving works of art; and (e) possess confidential information concerning other clients, transactions or the art market which we are not entitled to disclose. 17.3 The existence of those activities does not, of itself, create a conflict of interest or prevent us from accepting or continuing an engagement. 17.4 If we become aware of an actual or potential conflict which we consider material to the engagement, we shall disclose its nature to the Client to the extent that we are lawfully and properly able to do so and shall take such steps as we consider appropriate to manage it. 17.5 Our duty of confidentiality to another client or third party may prevent us from disclosing information which might otherwise be relevant to the Client. We shall not be required to disclose or use confidential information belonging to another person in breach of any duty owed to that person. 17.6 Unless expressly agreed otherwise, an engagement to value or advise upon a Work does not appoint us to sell it, purchase it, find a purchaser for it or act as the Client's agent in any subsequent transaction. 17.7 If, during or following an engagement, we or a person connected with us wishes to acquire a Work belonging to the Client, or we become involved in its sale, consignment or acquisition, the proposed transaction and any remuneration, commission or other financial interest on our part shall be disclosed and separately agreed as appropriate. 17.8 Any sale or purchase of a Work by us, or any consignment or agency arrangement involving us, shall constitute a separate transaction and shall be governed by the terms applicable to that transaction rather than by these Terms of Business alone. 17.9 Unless expressly agreed otherwise in writing, our provision of professional services does not create a fiduciary, trustee, partnership, joint venture or general agency relationship between us and the Client. 18. CONFIDENTIALITY 18.1 We shall treat information supplied to us by or on behalf of the Client in connection with an engagement as confidential, subject to the provisions of this section. 18.2 We may disclose confidential information where reasonably necessary: (a) for the performance of the engagement; (b) to our employees, professional advisers, contractors or service providers who reasonably require it; (c) to HM Revenue & Customs, Arts Council England, the Acceptance in Lieu Panel, government departments, public authorities, museums or other institutions where such disclosure falls within the agreed purpose of the engagement; (d) for the purposes of anti-money laundering, sanctions or other legal or regulatory compliance; (e) where required by law, court order or a competent authority; (f) for the establishment, exercise or defence of legal rights; or (g) with the Client's consent. 18.3 Our obligation of confidentiality shall not apply to information which: (a) is or becomes publicly available other than through a breach by us of these Terms; (b) was lawfully known to us independently of the engagement; (c) is received lawfully from another person without an obligation of confidentiality; or (d) has been independently developed by us without use of the Client's confidential information. 18.4 Nothing in these Terms requires us to disclose confidential information belonging to another client or third party. 19. ELECTRONIC COMMUNICATIONS 19.1 Unless the Client instructs us otherwise in writing, we may communicate with the Client and the Client's professional advisers by ordinary email and may send valuations, reports, invoices and other documents electronically. 19.2 The Client acknowledges that electronic communications may be subject to delay, interception, corruption, unauthorised access or other risks inherent in electronic transmission. 19.3 We shall take reasonable care in our use of electronic communications but cannot guarantee the security, confidentiality or successful delivery of communications transmitted electronically. 19.4 The Client shall take reasonable steps to protect their own systems and communications and should notify us promptly if they become aware of any suspected fraud, impersonation, interception or unauthorised alteration relating to the engagement. 19.5 The Client should not act upon any purported notification of a change to our bank account details without independently verifying the change with us using contact details previously known to them. 19.6 We shall not be responsible for loss caused by cyber fraud, interception, impersonation or unauthorised alteration of electronic communications except to the extent that the loss results from our failure to exercise reasonable care. 20. FEES, EXPENSES AND VAT 20.1 Our fees shall be calculated on the basis agreed with the Client at the commencement of the engagement or subsequently agreed in writing. 20.2 Unless a different basis is agreed, our professional services are charged according to the time reasonably spent on the engagement at our rate notified to the Client. 20.3 Where we provide an estimate of the time likely to be required or of the resulting fee, that estimate is given in good faith on the basis of the information and scope of work then available to us. Unless expressly agreed to be a fixed fee, an estimate does not constitute a fixed or maximum fee. 20.4 If the scope of the engagement changes, unforeseen issues arise, further research becomes necessary, additional property requires consideration, or work is required beyond that reasonably contemplated when an estimate was given, additional time shall be chargeable at the applicable rate. 20.5 Where reasonably practicable, we shall inform the Client if it becomes apparent that the time required is likely materially to exceed an estimate previously given. 20.6 Reasonable travel, accommodation, copying, photography, postage, courier and other out-of-pocket expenses properly incurred in carrying out the engagement may be charged in addition to our professional fees where applicable. 20.7 Where substantial third-party expenditure is contemplated, we may seek the Client's approval before incurring it and may require payment on account. 20.8 VAT shall be added to our fees and taxable expenses at the rate applicable at the relevant time. 20.9 Unless expressly agreed otherwise, our fees are payable for the professional work undertaken and are not contingent upon: (a) the value attributed to any Work; (b) the outcome of an application or negotiation; (c) acceptance of a valuation by HM Revenue & Customs or another authority; (d) acceptance of an offer under the Acceptance in Lieu scheme; (e) the sale or purchase of a Work; or (f) any other particular result. 20.10 Any commission, agency fee, introduction fee or other remuneration arising from a separate art transaction shall be separately agreed and shall not form part of our professional fees merely by reason of these Terms. 21. INVOICING AND PAYMENT 21.1 Unless otherwise agreed, we shall invoice the Client following completion of the engagement or at such other stages as we consider reasonable having regard to the nature and duration of the work. 21.2 For longer or more substantial engagements, we may issue interim invoices for work undertaken and expenses incurred. 21.3 We may require a payment on account before commencing or continuing an engagement. 21.4 Unless otherwise stated on our invoice, invoices are payable within 30 days of the invoice date. 21.5 The Client shall notify us promptly if they have any genuine query concerning an invoice. The existence of a query concerning part of an invoice shall not entitle the Client to withhold payment of any amount which is not genuinely disputed. 21.6 If an invoice is not paid when due, we may: (a) suspend work on the engagement; (b) decline to undertake further work for the Client; (c) charge interest on the outstanding amount at four per cent (4%) above the Bank of England Base Rate, calculated from the due date until payment; and (d) recover reasonable costs properly incurred in collecting the outstanding debt. 21.7 Suspension of work for non-payment shall not make us responsible for any resulting delay, missed opportunity or other consequence, provided that we have acted reasonably in exercising that right. 21.8 Where more than one person is identified as the Client, each shall be jointly and severally responsible for our fees and expenses unless expressly agreed otherwise in writing. 21.9 Payment of our fees by an executor from estate funds, by a solicitor or other professional adviser on behalf of the Client, or by any other third party does not make the payer our client or confer upon them any right to rely upon our work. 22. CLIENT RESPONSIBILITIES 22.1 The Client shall cooperate reasonably with us and provide such instructions, information, documents, access and decisions as are reasonably required for us to perform the engagement. 22.2 The Client is responsible for ensuring that information and instructions supplied by them or on their behalf are, to the best of their knowledge, accurate and complete. 22.3 The Client shall inform us promptly of any material change in circumstances or new information which may affect our advice or the performance of the engagement. 22.4 The Client remains responsible for all decisions taken in reliance upon our professional advice and for obtaining legal, tax, financial, conservation or other specialist advice where appropriate. 22.5 Where our work is dependent upon action by the Client, their professional advisers, a public authority or another third party, we shall not be responsible for delay or loss resulting from their failure to act, except to the extent that we have ourselves failed to comply with an obligation falling within the scope of our engagement. 22.6 The Client shall not knowingly provide our valuation, report or advice to another person in circumstances which suggest that it may be relied upon for a purpose for which it was not prepared. 22.7 Where the Client becomes aware of a matter which they consider may amount to an error or omission in our work, they should notify us promptly and give us a reasonable opportunity to consider and, where appropriate, address the matter before taking steps which might unnecessarily increase any resulting loss. 23. LIMITATION OF LIABILITY 23.1 Nothing in these Terms of Business excludes or limits our liability for: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by our negligence; (c) any liability which cannot lawfully be excluded or limited; or (d) any statutory right or remedy of a Consumer which cannot lawfully be excluded or limited. 23.2 Subject to clause 23.1, our aggregate liability arising out of or in connection with an engagement, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, shall not exceed the greater of: (a) £25,000; or (b) five times the total professional fees paid or payable to us for that engagement, excluding VAT, expenses and any remuneration arising from a separate sale, purchase, consignment, agency or other art transaction. 23.3 The limitation in clause 23.2 applies to all claims arising from the same engagement in aggregate and not separately to each claim, Work, alleged error or cause of action. 23.4 If, before the engagement commences, the Client considers that the limitation in clause 23.2 is insufficient having regard to the nature or value of the property or the potential consequences of the engagement, the Client should notify us. We may agree in writing to a higher limit of liability on such terms, including any adjustment to our fees, as may be appropriate. 23.5 Subject to clause 23.1, we shall not be liable for: (a) indirect or consequential loss; (b) loss of profit; (c) loss of revenue; (d) loss of business; (e) loss of opportunity; (f) loss of anticipated appreciation in value; (g) loss of anticipated investment return; (h) loss arising from market movements occurring after the date of our advice; or (i) loss arising from the use of our work for a purpose other than the purpose for which it was prepared, except to the extent that such liability cannot lawfully be excluded or limited. 23.6 We shall not be responsible for any loss to the extent that it is caused or increased by: (a) inaccurate, incomplete or misleading information supplied by or on behalf of the Client; (b) the Client's failure to disclose information material to the engagement; (c) the Client's failure to follow our advice or obtain specialist advice which we have reasonably recommended; (d) use of our valuation, report or advice for a purpose for which it was not prepared; (e) reliance upon our work after circumstances material to that work have changed; (f) alteration, selective reproduction or misleading presentation of our work by another person; (g) an act or omission of the Client, the Client's other professional advisers or any third party; or (h) a matter outside the agreed scope of our engagement. 23.7 Where loss results partly from our act or omission and partly from the act or omission of the Client or another person, our responsibility shall be limited to that proportion of the loss which is fairly attributable to our own act or omission, to the extent permitted by law. 23.8 We shall not be responsible merely because: (a) a Work subsequently sells for more or less than a value expressed by us; (b) another appropriately qualified person subsequently expresses a different valuation or opinion; (c) scholarship, attribution, provenance information or market opinion subsequently changes; (d) a public authority, government department, panel, museum, insurer or other person does not accept our valuation, opinion, recommendation or application; or (e) an anticipated transaction, application, tax treatment, allocation or other outcome does not occur. The circumstances described in this clause do not, of themselves, establish that we failed to exercise reasonable skill and care. 23.9 Subject to clause 23.1, we shall not be liable for any loss which was not reasonably foreseeable as a consequence of our breach at the time the engagement was entered into. 23.10 The Client shall take reasonable steps to mitigate any loss which they believe has arisen from an act or omission on our part. 23.11 Any limitation or exclusion of liability in these Terms shall apply only to the extent permitted by applicable law. 24. TERMINATION AND SUSPENSION 24.1 Either we or the Client may terminate an engagement by giving reasonable written notice to the other. 24.2 We may suspend or terminate an engagement with immediate effect where: (a) the Client fails to pay an invoice when due; (b) the Client fails to provide information, instructions, access or cooperation reasonably required for the engagement; (c) we reasonably consider that continuing the engagement would give rise to a material conflict of interest which cannot appropriately be managed; (d) we reasonably consider that continuing the engagement may involve a breach of law, regulation, sanctions or professional obligation; (e) the Client requires us to act in a manner which we reasonably consider improper, misleading or inconsistent with our professional judgement; or (f) the relationship of trust and confidence reasonably necessary for us to provide the professional services has materially broken down. 24.3 Upon termination, the Client shall pay our fees and expenses for work properly undertaken up to the date of termination together with any unavoidable commitments reasonably incurred on the Client's behalf. 24.4 Termination shall not affect any rights or obligations which have accrued before termination. 24.5 Provisions concerning confidentiality, use and reliance, fees, limitation of liability, intellectual property, governing law and any other provision which by its nature is intended to continue shall survive termination. 25. INTELLECTUAL PROPERTY 25.1 Copyright and all other intellectual property rights in valuations, reports, research, written advice, photographs and other material prepared by us shall remain vested in us or the relevant copyright owner. 25.2 The Client is granted a non-exclusive right to use our work for the stated purpose of the engagement and to disclose it as permitted by these Terms. 25.3 No transfer of copyright or other intellectual property rights shall arise merely because the Client has paid for the preparation of a valuation, report or other work. 25.4 Nothing in this section prevents the Client from submitting, copying or reproducing our work to the extent reasonably necessary for the stated purpose of the engagement. 26. DATA PROTECTION 26.1 We shall process personal information in accordance with applicable data protection legislation and our Privacy Policy. 26.2 The Client shall ensure that they are lawfully entitled to provide us with personal information concerning other individuals where that information is required for the purposes of the engagement. 27. GENERAL 27.1 These Terms of Business, together with the particular written terms of the engagement, constitute the entire agreement between us and the Client concerning the professional services to which they relate. 27.2 The Client confirms that, in entering into the engagement, they have not relied upon any statement or representation not expressly incorporated into the agreement. Nothing in this clause excludes liability for fraud or fraudulent misrepresentation. 27.3 If any provision of these Terms is found by a court or other competent authority to be invalid, unlawful or unenforceable, that provision shall be treated as modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, it shall be treated as deleted. The remaining provisions shall continue in full force and effect. 27.4 Failure or delay by either party in exercising a right or remedy shall not constitute a waiver of that right or remedy. 27.5 The Client may not assign or transfer their rights under the engagement without our prior written consent. 27.6 We may assign or transfer our rights or obligations where reasonably necessary in connection with the operation or transfer of our business, provided that this does not materially prejudice the Client. 27.7 Except as expressly provided in these Terms, no person who is not a party to the engagement shall have any right to enforce any term of it under the Contracts (Rights of Third Parties) Act 1999. 27.8 We shall not be responsible for delay or failure to perform an obligation where caused by circumstances beyond our reasonable control, including illness, natural disaster, fire, flood, war, terrorism, pandemic, industrial dispute, interruption of transport or communications, cyber incident, failure of third-party systems or any act or omission of government or another competent authority. 27.9 These Terms do not create a partnership, joint venture, fiduciary relationship or general agency between us and the Client. 28. NOTICES 28.1 Any notice required under the engagement shall be in writing and may be delivered personally, sent by first-class post or sent by email to the postal or email address last notified by the receiving party. 28.2 A notice shall be deemed received: (a) if delivered personally, when delivered; (b) if sent by first-class post, on the second working day after posting; and (c) if sent by email, when transmitted, provided that the sender has not received an automated delivery failure or similar notification. 29. GOVERNING LAW AND JURISDICTION 29.1 The engagement and any dispute or claim, including any non-contractual dispute or claim, arising out of or in connection with it shall be governed by and construed in accordance with the law of England and Wales. 29.2 Subject to any mandatory jurisdictional rights which a Consumer may have under applicable law, the courts of England and Wales shall have exclusive jurisdiction to determine any dispute or claim arising out of or in connection with the engagement. |