1. THIS AGREEMENT
a) Agreement to these Terms and Conditions (the “Agreement”) represents the entire agreement between the International Art & Antiques Loss Register Limited (the “ALR”), a company registered in England with company number 2455350 (registered office: 16 Black Friars Lane, London EC4V 6EB, UK), and trading as The Watch Register, its affiliates and subsidiaries, and you (“the Client”) (together “the Parties”).
b) This Agreement supersedes all prior oral or written agreements, arrangements or understandings between the Parties.
c) The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the ALR which is not set out in this Agreement.
a) In this Agreement:
i) use of the singular includes the plural (and vice versa) and reference to any gender includes all genders;
ii) any reference to a person shall include a firm or limited company;
iii) reference to any law or statute includes a reference to that law or statute as from time to time amended and to any orders, statutory instruments or regulations made under that law or statute; and
iv) reference to writing or written includes emails.
b) Headings to clauses contained in this Agreement are inserted for convenience only and they do not form part of or affect the interpretation of this Agreement.
a) “Database” means the computerised register of ownership, interests, and missing or stolen items maintained by the ALR;
b) “Watch” means any watch that is stolen, lost, the subject of a fraud, the subject of a lien or other security interest in the Client’s favour, or any watch in which the Client has a contingent interest subject to a dispute;
c) “Registration Fee” means the relevant fee for registration currently advertised on the ALR website.
4. THE SERVICES WE OFFER
4.1 THE REGISTRATION SERVICE
a) Upon payment of the Registration Fee, and subject to its right to withdraw any listing, the ALR agrees to register Watches on the Database on behalf of the Client (the “Registration”). Other than this Registration, no warranties, promises or undertakings are being made to the Client through this Agreement. The Registration Fee is non-refundable.
b) The ALR at all times has the right to determine whether a Watch qualifies to be included or maintained in the Database. Should the ALR decline to register or, having entered, subsequently delete a Registration it will promptly notify the Client of such decision. The ALR will not be required to give any reason for its decision and nor will the Registration Fee be refunded to the Client.
c) All Watches will be searched against the Database prior to Registration, and in the event that a Watch matches an item already on the Database the Client confirms that it will cooperate with the ALR in securing the return of the Watch to its rightful owner, and if currently holding the Watch which is a match for one already on the Database, the Client will continue to hold it and will not release it to a third party.
d) On completion of Registration, confirmation of Registration shall be provided to the Client by e-mail.
e) Should the ALR request further information from the Client that in its sole opinion it considers necessary to complete the Registration, and the Client fails to provide the requested information within 14 days thereafter, or within such other timescale as may be set by the ALR, the ALR may decline to complete the Registration. In such circumstances the Registration Fee is not refundable.
f) Should the ALR need to undertake additional research and/or incur additional costs in order to complete a Registration, the ALR reserves the right to make additional charges which shall be payable by the Client within 14 days of the date of the relevant ALR invoice. No such charges shall be incurred without the prior consent of the Client.
g) Note that the Database is consulted or searched in response to appropriate enquiries from, amongst others, the Client and other clients, insurance companies, law enforcement agencies, auction houses, art dealers, museums, and private citizens.
h) The Client recognises that the ALR has contractual obligations to, and may be paid by, any party who consults, searches or registers items on the Database.
i) In the event that any search of the Database reveals a match with a Watch registered by the Client, the ALR will promptly notify the Client of this match. The ALR will also inform the Client if it locates or recovers any object that appears to be related to a registered Watch.
j) The Client recognises that there may be occasions when, due to instructions from law enforcement agencies, the ALR will be obliged to delay notifying the Client and no liability will fall on the ALR for such late notification.
k) The ALR reserves the right to refuse service, terminate accounts, or remove or edit content, at its sole discretion.
4.2 THE RECOVERY SERVICE
a) The Client appoints the ALR to recover or to assist the Client to recover the registered Watches (the “Recovery”). In addition to locating a Watch, the services to be provided by the ALR may include but are not limited to negotiation, liaison with police or other law enforcement agencies, liaison with third parties, investigation or research, the facilitation of mediation, the prevention of a sale which is unauthorised by the Client, and the identification or location of other Watches in respect of which the Client has suffered loss or theft.
b) In the event that the Client does not have full title to a Recovery, the Parties will use their best endeavours to obtain the agreement to the Recovery Process of any other parties with an interest; including, but not limited to, any insurer.
c) The ALR shall keep the Client informed of progress by telephone, e-mail, or post.
d) The ALR may advise law enforcement agencies, any relevant insurer and any other parties with an interest in, or that the ALR believes ought to be notified of, the Recovery process.
e) The ALR may take other steps to effect the recovery of a Watch; including, with the prior written consent of the Client, offering a reward.
f) The Client will promptly notify the ALR in the event that a Watch the subject of this Agreement has been recovered and/ or delivered to the Client by a third party; or the Client is approached by a third party holding information that may be relevant to the location or recovery of a Watch; or the Client secures some benefit from its location or sale.
5. FEES AND COSTS
5.1 RECOVERY FEE
a) Where, pursuant to clause 4.2 above, the ALR has acted on the Recovery of any Watch for the benefit of the Client, the ALR shall be entitled to the payment of a recovery fee by the Client (the “Recovery Fee”). This will apply whether the Recovery is with the assistance of third parties or not.
b) The Recovery Fee is calculated as 20% of the ultimate net benefit to the Client. Ultimate net benefit is calculated as the Current Market Value (defined below) of a Watch if recovered, plus any additional benefits secured by the Client through the Recovery, minus any costs and expenses agreed by the ALR in advance as necessary for the Recovery (the “Ultimate Net Benefit”). Such costs and expenses might include legal, investigative, PR, compensation or settlement costs, but exclude the ALR’s Recovery Fee. A minimum Recovery Fee of £500 applies and if the sum calculated as above is below this level the minimum fee will be charged.
c) In the event that the Location (as defined below) or Recovery of a Watch by the ALR averts the settlement or payment of any claim, refund, or restitution of whatsoever nature by the Client, and/or in the event that the Location or Recovery averts or reverses any award of damages, costs or restitution of whatsoever nature against the Client, the benefit to the Client of this will be considered an additional benefit for the purposes of calculating the Ultimate Net Benefit.
d) In the event that the Client recovers property which was not registered on the Database but is nevertheless recovered by or identified by the Client as a consequence of efforts and/or information from the ALR, the Client shall also be liable to pay a Recovery Fee to the ALR.
e) Where the Client benefits from the Recovery of multiple Watches or items as a result of the ALR’s work the Recovery Fee will be based upon the aggregate value of all Watches or items recovered.
5.2 LOCATION FEE
a) The Client will pay to the ALR a location fee upon the discovery or identification by the ALR and notification to the Client of the location of any Watch (the “Location”) registered with it (the “Location Fee”).
b) A Location Fee shall also be payable by the Client to the ALR when a Watch, or any other item in respect of which the Client has suffered financial loss as a consequence of its theft, loss or looting, whether it is registered on the Database or not, is discovered or identified by the ALR when:
i) notification of the Location is first received by the Client from the ALR even though the Watch may have been earlier located by a third party; or
ii) the notification is first made to the Client through a third party after the Location has been identified by the ALR.
c) The Location Fee will be whichever is the greater of £200 or a sum equivalent to 5% of the Ultimate Net Benefit to the Client from the location of the Watches or items located (both plus VAT where applicable).
d) No Location Fee will be payable if a Recovery Fee is paid in respect of the same Watch or item.
5.3 OBLIGATION TO PAY FEES
The Client’s obligation to pay a Recovery Fee or a Location Fee as defined under the terms of this Agreement arises immediately upon the submission of Watches to the ALR for Registration by the Client.
5.4 CURRENT MARKET VALUE
a) The Recovery Fee and Location Fee are based upon the current market value of an item at the time of Location or Recovery (the “Current Market Value”).
b) If the Current Market Value of a Watch cannot be agreed between the Parties it will be calculated as follows.
c) The ALR will seek a qualified appraisal of the Current Market Value of any recovered Watch (“Appraisal”). The Client agrees to cooperate and respond promptly to reasonable requests for information for the purposes of the Appraisal.
d) On receipt of the Appraisal the ALR will submit it to the Client.
e) Within thirty (30) days the Client will accept or contest the Appraisal. A failure to respond within that time will be deemed an acceptance of the Appraisal by the Client.
f) Should the Client wish to contest the Appraisal the Client shall give written notice to the ALR, and if the Current Market Value cannot be agreed between them the Parties will then jointly apply to the Royal Institution of Chartered Surveyors (“RICS”) for a further and final appraisal (“the Final Determination”). The cost of this procedure shall be the responsibility of the Client and the Final Determination shall be conclusively binding on both parties.
g) The Recovery Fee or Location Fee shall be payable within thirty (30) days of acceptance or deemed acceptance of the Appraisal, or in the event of an application to the RICS, within fifteen (15) days from receipt of the Final Determination.
5.5 POST RECOVERY DISPOSITION
Provided that it is not contrary to the terms of the Client’s relationship with any other interested party, the ALR is hereby appointed and designated to act on behalf of the Client with respect to any disposition of a recovered Watch where the ALR is entitled to a Recovery Fee if it is proposed to sell the recovered Watch.
5.6 ADDITIONAL COSTS
a) Provided that such costs have been agreed by the Client in advance, the ALR shall also be entitled to recover from the Client any reasonable additional costs or expenses incurred by the ALR (including the payment of rewards authorised by the Client) in connection with either the Location, Recovery, disposition or attempted disposition of a Watch, or any other item in respect of which the Client has suffered financial loss as a consequence of its theft or loss.
b) Such additional costs will be paid within thirty (30) days of the sending of an invoice by the ALR to the Client, and shall be a first charge in favour of the ALR on the proceeds of any disposition.
6. TIME FOR PAYMENT
All fees due under this Agreement will be payable within thirty (30) days of invoicing by the ALR. Time for payment shall be of the essence of this Agreement. If fees are not paid within this timescale then the ALR may choose to withhold notice to the Client of further Locations of Watches.
7. INTEREST ON LATE PAYMENT
In the event that payment is not made in accordance with and at the times set out in this Agreement, interest shall become payable on all sums outstanding from the date that they become due until payment to the ALR at the rate of 3% per annum above the Bank of England base rate prevailing from time to time.
a) For the avoidance of doubt, the Client is responsible for all VAT and/or other applicable taxes.
b) All fees quoted are exclusive of VAT unless it is expressly stated to be included.
9. THE ALR’S SERVICES
The ALR warrants to the Client that the services provided for under this Agreement will be provided using reasonable care and skill.
10. LIMITATION OF LIABILITY – The Client’s attention is specifically drawn to this clause
a) Nothing in this agreement limits or excludes the ALR’s liability for:
i) death or personal injury caused by its negligence;
ii) fraud or fraudulent misrepresentation; or
iii) any liability which cannot be limited or excluded by applicable law.
b) Subject to clause 10. a):
i) the ALR shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement; and
ii) the ALR’s total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000 (Ten Thousand Pounds Sterling).
c) This clause 10 shall survive any termination of this Agreement.
a) The ALR is registered under the Data Protection Act (1998) (“DPA”) as a Data Controller. Unless the Client specifically permits disclosure, information provided by the Client will be kept confidential.
b) It is, however, understood and agreed that the ALR may from time to time be under a legal obligation to disclose information in the course of its operation. In particular the Client acknowledges the right of the ALR to search its Database and in the event of a match to a Watch to notify not only the Client but also any insurer of the item, loss adjuster, law enforcement agencies or any other party that in its absolute discretion the ALR considers should be notified.
c) The restrictions herein contained shall not apply to any information which is in, or comes into, the public domain (otherwise than in consequence of a breach by the party to whom the information was disclosed); or can be demonstrated to have been lawfully in the other party’s possession prior to disclosure; or is required to be disclosed by a legally enforceable request from a competent law enforcement authority or Order from a competent court of law.
d) The Client agrees that no information provided by the ALR to the Client will be released to any third party without the prior written consent of the ALR, which shall not be unreasonably withheld or delayed.
12. WARRANTIES BY THE CLIENT
a) By registering a Watch the Client warrants:
i) the accuracy and completeness of any information supplied to the ALR;
ii) to fully, accurately and promptly disclose to the ALR any information which may be relevant to the Watch’s ownership and location, to its recovery and disposition, any issues relating to tax or export licenses pertaining to the Watch, any third party interests in the Watch, or any other information which may be relevant to the ALR or assist in its recovery of the Watch;
iii) to cooperate fully with the ALR in order to ensure the accuracy of the Database, and notify the ALR as soon as it ceases to have an interest in any Watch;
iv) that it has a registrable interest in the Watches;
v) that where a Watch is the subject of an insurance policy all relevant details of cover and the identity of the insurer have been provided.
b) The Client warrants that it will refrain from any actions or inactions which will reduce the possibility of the ALR receiving its Recovery Fee, and if in any doubt the Client will seek the consent and advice of the ALR as to its actions in relation to a Watch.
c) In the event that the Client becomes aware of the possible recovery of a Watch that has been registered as lost or stolen, or is contacted by any other party in relation to the possible recovery of a lost or stolen object, the Client warrants that it will contact the ALR immediately. The Client also warrants that it will keep the ALR advised of any and all negotiations relating to a Watch or its recovery.
d) The Client warrants that the ALR has permission to reproduce any Watch whether by photograph or by illustration (including by electronic means) and the Client warrants that it will indemnify the ALR against all claims arising from an infringement or alleged infringement of copyright, which are made by any party in connection with the ALR’s use of any photograph or illustration of a Watch in the conduct of its business.
e) The Client warrants that it will promptly notify the ALR in the event that a Watch has been recovered and/or delivered to the Client by a third party; or the Client is approached by a third party holding information that may be relevant to the Location or Recovery of a Watch; or the Client secures some benefit from the Location or sale of a Watch.
f) The Client warrants that no information provided by the ALR to the Client will be released to any third party without the prior written consent of the ALR, such consent shall not be unreasonably withheld or delayed.
The Client agrees to indemnify the ALR from any claim, loss or expense (including reasonable legal fees in defending any such claim) whatsoever and howsoever arising out of or relating to:
a) the use of information contained in the Database by a third party, where such information has been made available to that third party by the Client, unless prior written consent to such disclosure has been provided by the ALR; and
b) any use by the Client of the Registration, or reference to the ALR or the Registration, in dealings with a third party which leads to the ALR being drawn into a dispute.
14. NO AGENCY OR PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute either party the agent of the other nor shall this Agreement create a partnership between the parties.
15. TERMINATION OF THE AGREEMENT
a) The Client may terminate this Agreement by no less than sixty (60) days written notice to the ALR (“Termination Notice”)
b) Termination Notice may not be served at any time by the Client in relation to a Watch once the Client has been informed that the Watch has been located, or that information has been received that might lead to its Recovery.
c) The termination of this Agreement will not result in the removal from the Database of the fact of the loss which is recorded in the Registration.
d) Once Termination Notice has been served the Client will become liable to pay an administration and management fee of £10 per year, or part year, since Registration in relation to each Watch registered to cover the costs incurred up to the date of termination in maintaining the Registration on the Database. Termination will not be effective until this fee has been paid.
e) In the event that any Watch is located following the termination of this Agreement the ALR will be under no obligation to provide the Location of the Watch to the Client.
f) Without limiting its other rights and remedies, the ALR reserves the right to terminate this Agreement without prior notice to the Client, but will notify the Client of its decision to terminate.
g) Clauses of this Agreement which expressly or by implication survive termination shall continue in full force and effect following any termination.
The Parties will consult with each other and other relevant third parties, including any relevant law enforcement agency, in relation to any public statement to be made in relation to Watches or Recoveries covered by this Agreement.
a) Any notice given under this Agreement must be in writing and sent either by:
i) electronic mail, or by hand, in which case such notice shall be treated as being received on the day it is delivered unless delivery occurs after the normal working hours of the recipient, in which case delivery shall be treated as having occurred on the next working day; or
ii) registered post in which case such notice shall be treated as being received 2 working days after the date of posting.
b) The address of each party for the service of notices shall be as set out in this Agreement (unless or until that address is changed by notice given under this clause).
a) If any provision or part provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
b) If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
a) A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
b) No indulgence or extension of time which the ALR may grant to the Client will constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the ALR in terms hereof, save in the event or to the extent that the ALR has signed a written document expressly waiving or limiting such rights.
20. FORCE MAJEURE
Neither party shall be liable in damages nor have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
21. THIRD PARTIES
A person who is not a party to the Agreement shall not have any rights to enforce its terms.
Where any conflict or contradiction appears between the provisions of this Agreement and any other relevant terms and conditions, policies or notices, the terms of this Agreement shall prevail.
23. PROPER LAW AND JURISDICTION FOR DISPUTES
a) The construction, validity and performance of this Agreement shall be governed by the laws of England and Wales.
b) Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which cannot amicably be resolved shall be referred to and resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this clause.
c) In any such arbitration the number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English.