The ItaliMalangatana - Confirmação de Registo‏an - The last work of Mater Malangatana

 

Regulation of the Auction

    Chapter 1 General Provisions

  1. Purpose
    1. This Regulation aims at defining the legal terms and conditions for the international electronic auction for the sale and purchase of the latest artwork by Mozambican painter Malangatana Valente Ngwenya.
    2. This Regulation also seeks to inform the general public on the form of registration on the website and the operation of the auction.Scope of the Auction
  2. Scope of the Auction

The auction is open to all bidders duly registered for the auction on the website, regardless of their respective country of origin.

  1. Definitions and Interpretation
    1. In this Regulation and except where expressly provided otherwise, the following words and expressions shall have the following meaning:
      1. Arranger: YoungNetwork Moçambique, Lda, with head office at Av. do Zimbabwe, n.º 385, Maputo, Mozambique, registered with the Commercial Registry under number 100144255, taxpayer 400257167, which, among other aspects, is responsible for the presentation of the artwork to the public and media, as well as for preparing and organizing the process for the dissemination and sale of the artwork;
      2. Auction: the offer of sale to the public of the artwork through the Internet;
      3. Bid: an offer to buy the artwork, submitted by the bidders in the scope of the auction;
      4. Bidder: the user who accesses and uses the website with the intention of taking part in the auction;
      5. Buyer: the winning bidder according to the rules defined in this Regulation;
      6. Personal Area: the area with access restricted to each bidder in the auction website, in which the elements and information related to the respective account will be made available;
      7. Portal Sapo:an Internet portal owned by PTC, available at http://www.sapo.mz/, which operates as a centralized access point to the information available on the Internet, as well as to PTC channels and services;
      8. Promoters:the Malangatana Foundation and the Ferreira dos Santos family, which are responsible for fulfilling the objectives of this project and to promote the auction;
      9. PTC: PT Comunicações, S.A, with head Office at Rua Andrade Corvo nr. 6, 1050-009 Lisbon, Portugal, with a share capital of € 150.000.000,00 (one hundred and fifty million Euros), registered with the Commercial Registry of Lisbon, under company number and taxpayer number 504615947;
      10. Registry: the process through which any legal or natural person may register on the website and participate in the auction, in accordance with the applicable conditions. Registry is a prior condition for participation in the auction;
      11. Reservation Price: the minimum price for sale of the artwork, as set out by the seller;
      12. Seller: the legitimate heirs of painter Malangatana Valente Ngwenya (Gelita Mhangwana, Mutxhini Mário Malangatana Santos Ngwenya, Hehlise Graciete Malangatana Ngwenya, Cecília Malangatana Valente Ngwenya and Manguiza Lima Malangatana Ngwenya), the Ferreira dos Santos family (João Rodrigues Ferreira dos Santos; João Jonet Ferreira dos Santos (son) and Francisco Jonet Ferreira dos Santos (son)) and Técnica Industrial;
      13. System: the computer program used as support for the auction, made available through the website, which is owned and operated by PTC, which makes it possible to make bids over the artwork and which registers the history ofr previous bids;
      14. Técnica Industrial: Técnica Industrial, S.A., with head office at Av. de Angola, n.º 2119, Maputo, Mozambique, registered with the Commercial Registry under number 3596, taxpayer 400001685;
      15. Website: the group of hipertext, informative and descriptive elements which is accessible through URL https://malangatana.sapo.mz, organized and made available by PTC, which allows the visualization and use of the tools, resources and other functionalities associated with the auction and through which it will be possible to participate in the auction; and
      16. Work: the latest artwork painted by artist Malangatana Vicente Ngwenya — better known as “A Italiana” — of which the physical framework is a Fiat 500 vehicle.
    2. The titles for the articles in this Regulation are included merely for convenience purposes and are not to be used as support for the interpretation of integration thereof.
    3. In this Regulation and except where otherwise expressly indicated, references to articles and numbers refer to articles and numbers of this Regulation.
    4. The expressions defined above in the singular form may be used in plural form and vice-versa, with the corresponding modification to their respective meaning.
    5. If any of the terms in this Regulation is declared invalid, ineffective or unenforceable by a competent authority, such invalidity, ineffectiveness or unenforceability shall not affect the validity of the remaining provisions.
  1. Effects of the Regulation

In the terms foreseen herein, this Regulation shall bound (i) the seller, as the entity which carries out the offer for sale of the artwork, (ii) the arranger, which has the responsibility to ensure the correct and adequate operation of the auction, (iii) the bidders registered in the website and (iv) Técnica Industrial, as the holder of rights to the vehicle on which the artwork is incorporated.

  1. The Work
    1. The seller holds all relevant rights pertaining to the artwork.
    2. In accordance with the terms of this Regulation, the artwork will be sold “as is” at the moment of closure of this auction.
    3. The artwork is in exhibit at the premises of Técnica Industrial, where it may be seen by the general public. Further information in this respect is available on the website.
  1. Beneficiary

The financial result of the auction will revert to the Malangatana Foundation, deducted of all costs and expenses generated by this project.

Chapter IIRegistry

  1. Qualification of Bidders
    1. Participation in the auction is open to legal or natural persons who are capable and financially able to fulfill the terms of this Regulation and to assume the responsibilities inherent to the participation in an auction, namely the payment of the winning bid.
    2. Registration in the website is limited to natural persons who are considered adults, in the terms of the applicable personal law.
    3. Legal persons, duly established in the terms of the applicable law, may register on the website and take part in the auction. For this purpose, such legal persons must be duly represented by a natural person with binding powers.
    4. For the purposes of this Regulation, the natural person indicated in a legal person’s register must declare that he/she holds the necessary powers to legally bind the entity he/she represents, and is responsible for any costs and damages arising from any false statements made, in addition to other sanctions which may be applicable in the terms of the law.
  1. Registration Procedure
    1. Registration may be carried out at any moment, until the date of conclusion of the auction.
    2. Registration depends on existence of a prior account in «Portal Sapo», available here and the filling out of a specific registration form available through the website.
    3. The creation of an account in «Portal Sapo» is subject to specific terms, which are made available at the moment of adhesion and which must be accepted by the user.
    4. Following registration in «Portal Sapo» and in order to conclude the registration procedure for participation in the auction, the user must fill out the specific form provided in the website, in accordance with the information requested therein.
    5. In order to guarantee financial adequateness of the participants in the auction, the users will be requested to provide information relating to their financial and banking situation, namely: (i) name of Bank; (ii) location and country of Bank, (iii) SWIFT number; (iv) number of account; (v) name of holder of account and (vi) Bank’s phone number.
    6. Data concerning the banking situation may be confirmed in order to determine the financial capacity of the participants in the auction and the arranger reserves the right to exclude the bidders that do not fulfill the necessary adequacy requirements and to cancel their register.
    7. Following the filling out of the registration form, the users must validate their registration according to the methods defined on the website. Noncompliance with this will not allow participation in the auction.
    8. Users are bound to the rules foreseen herein upon acceptance of this Regulation, and are responsible for noncompliance with said rules.
  1. Anonymity
    1. The bidder may choose to maintain anonymity if he/she wins the auction. In this case, the identity of the buyer of the artwork shall not be made public
    2. Anonymity is optional and must be chosen on the moment of registration.
    3. The anonymity option does not prejudice the right of Public Authorities from requesting information on the auction participants at any time.
  1. Bidders Personal Area
    1. Each bidder shall have a personal area on the website, which shall include information regarding, among other, (i) his/her data and (ii) record of the bids submitted.
    2. The bidders may alter, modify or correct the information provided and hereby declares and guarantees that will carry out such amendments in accordance with article 11.1 .
  1. Responsibility of Bidders
    1. Whenever requested, users must provide true, exact and updated information. Should false, incomplete or non-updated information be provided, the arranger reserves the right to, at any moment, exclude the bidder and cancel the registry.
    2. Additionally, provision of false, incomplete or non-updated information may cause serious damage to the entities involved in the auction and may also constitute a crime, as foreseen in the terms of the applicable law. As such, the arranger and the seller reserve the right to hold the persons responsible for the damages accountable according to civil law and may also file a complaint before the competent criminal authorities.
    3. For the purposes of this Regulation, the bidders commit to keep their username and password strictly confidential. Bidders are responsible for their use of the website and for all actions carried out in the scope of the auction using their registration data.

Chapter IIIBids

  1. Beginning and Participation in the Auction
    1. The auction shall begin at 9 p.m., on the 6th May 2011, Mozambique time (UTC/GMT + 2 h)
    2. Participation in the auction and the submission of bids are limited to qualified bidders in the terms of Chapter II of this Regulation. Bidders shall at all times comply with the terms and conditions provided herein, as well as with the applicable laws.
  1. Reservation Price
    1. The reservation price shall be determined exclusively by the seller and shall not be made public.
    2. The seller shall only be obligated to sell the artwork if the winning bid is superior to the reservation price.
  1. Functioning of the Auction
    1. The initial value of the artwork shall be 125.000,00 USD (one hundred and twenty five thousand American dollars).
    2. The minimum amount for each bid is 2.500,00 USD (two thousand and five hundred American dollars), meaning that a bid will only be registered in the system if it is superior to the previous bid by at least 2.500,00 USD.
    3. There is no maximum bid amount.
    4. When bidding, bidders must use the tools made available on the website and use their registration data.
    5. Prior to submitting the bids in the system, the bidder will have to confirm the amount of the bid.
    6. Upon confirmation, the bid becomes irrevocable and definitive in the terms in which it was registered, with all legal consequences.
    7. Exceptionally, the arranger may accept the correction or elimination of a bid, especially in the case of patent miscalculation or writing errors. For this purpose, the bidder must issue a message regarding the cancellation of the bid to the contact details included on the website within a maximum 2 hours following the confirmation of the bid. The arranger shall decide whether or not to correct the bid as requested within a maximum 24 hours, counting from reception of the bidders’ request.
    8. Following confirmation of the bid by the respective bidder, if the bid is valid, it will be registered in the system, with reference to the identity of the bidder and the date and time of the bid, and it will be available in the bidder’s personal area.
    9. At all times, the highest bid will be shown on the first page of the website, without identification of the bidder’s identity, regardless of the anonymity option.
    10. Should two or more bids be submitted with the same amount, it prevails the first bid registered in the system
  1. Responsibility for Bids
    1. Collusion or any action interfering, manipulating or hindering the website and/or the auction are strictly prohibited. Should there be any indication of such practices the arranger reserves the right to exclude the bidders in question and to cancel their registrations.
    2. Bidders are entirely responsible for the bids they register in the system and are bound to pay the bid value. As such, they are not to make any bids if they do not have the capacity to carry out the payment of the amount of the bid
    3. The arranger and the seller reserve the right to hold the bidders responsible for all damages caused by the carrying out of non-serious bids or any illicit practices that interfere with, manipulate or hinders the website or the auction. Likewise, arranger and seller may file a complaint before the competent criminal authorities.
    4. The bidder is the sole responsible for any bids being registered in the system after the data of closure of the auction, in which case such bids will not be considered for the purpose of determining the winning bid.

Chapter IVClosure of Auction

  1. Closure of Auction

The auction shall terminate at 8 p.m. on the 6th July, 2011, Mozambique time (UTC/GMT + 2 h), during a gala to be organized to this effect.

  1. Winning Bid
    1. The winner of the auction shall be the bidder that validly registers in the system the bid of the highest amount for purchasing the artwork, greater than the reservation price.
    2. If the winning bid is lower than the reservation price, the seller has the right to sell the artwork to the bidder that submitted the highest bid, in which case this will be the winner of the auction.
    3. As defined in this Regulation and in the applicable law, the winning bidder is bound to pay the value of the winning bid, and the seller is obligated to sell the artwork and deliver it to the buyer.
    4. Noncompliance with the obligations related to the transaction of the artwork shall cause the noncompliant party to incur in the obligation to indemnify the other party for all damages caused.
  1. Sell and Purchase of the Artwork
    1. The seller and the buyer are solely responsible for executing the sell and purchase agreement over the artwork and to transmit all rights thereof.
    2. The seller will transmit the rights it holds over the vehicle as well all relevant copyrights.
    3. Without prejudice of the copyright transmission, the buyer pledges to invest the seller with the necessary rights in order to allow it to lawfully exploit the artwork, namely by authorizing the exercise of acts concerning the copy, distribution and communication to the public of the artwork, in the terms to be defined in the draft purchase and sell agreement available on the website.
    4. Moral rights over the artwork will not be affected by the transmission of copyright.
  1. Payment of the Winning Bid
    1. The amount of the winning bid shall be paid by wire transfer to the account of Técnica Industrial in Banco Comercial e de Investimentos (BCI), located in Mozambique, with the following identification:

    Account number: 1967258102
    NIB: 000800000196725810277
    IBAN: MZM59000800000196725810277
    COD SWIFT: CGDIMZMAXXX

within a maximum of 5 business days as from the data of closure of the auction. The seller may request the acknowledgement of the transfer order in the form of a copy of the SWIFT report.

  1. Delivery of the artwork to the buyer is subject to the deposit of the amount of the winning bid in accordance with the terms of the previous number.
  1. Costs and charges
    1. The seller will be responsible for supplying/dispatching the artwork in FOB (Free on Board) Maputo conditions, as internationally set out in Incoterm 2000, published by the International Chamber of Commerce.
    2. Charges provided for in Mozambican law applicable to the seller for selling and delivering the artwork will be borne by the seller.
    3. All special taxes pertaining to the transmission of intellectual property and all other charges due in the destination country of the artwork will be borne by the buyer.

Chapter VFinal Provisions

  1. Auction Website

PTC was the technological partner chosen by the arranger to run the website and the computer platform underlying the auction. PTC’s responsibility in this respect is set out in the terms of use of the website and it is limited to its participation in this project.

  1. Clarifications

Requests for clarifications on the operation of the auction or on the content of this Regulation shall be directed to the contacts made available on the website.

  1. Aplicable Law and Courts

This Regulation is ruled by the applicable provisions in Mozambican law and the courts of Mozambique shall be exclusively competent for deciding any conflicts arising in connection to the interpretation or integration of this Regulation. Back

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