ARTHOUSE AUCTIONS - TERMS AND CONDITIONS
1. Auctioneer is Agent for Vendor
Arthouse Auctions is agent for the Vendor and is not responsible for any default by the Vendor or the Buyer.
2. Highest Bidder
Subject to any reserve price, the highest bidder shall be the Buyer and a dispute shall be settled by the Auctioneer who may at any time and his absolute discretion and regardless of the fall of the hammer reopen the bidding or withdraw the lot from sale. The decision of the Auctioneer shall be final.
3. Regulation of Bidding
The Auctioneer has the right in his absolute discretion to refuse any bid and to advance and regulate the bidding as he decides and any bid acknowledged and relied upon by the Auctioneer may not be withdrawn.
4. Rights of Auctioneer and Vendor
The Auctioneer and the vendor reserve the following rights which may be exercised by the Auctioneer without giving any reason therefore:
a) Not to offer for sale any lot described in the catalogue;
b) To offer for sale part only of any lot described in the catalogue;
c) To offer two (2) or more of the lots described in the catalogue as separate lots or together as one lot;
d) Should such lots referred to in (c) of this condition not be knocked down under the hammer to a successful bidder, to offer them as separate lots;
e) To keep secret the existence and amount of the reserve price (if any) of a lot;
f) In the event that any Buyer shall successfully bid for more than one lot at the auction -
i. To appropriate any monies received from that Buyer in satisfaction or partial satisfaction of the purchase price due in respect of any one or more of such lots to the total or partial exclusion of amounts due in respect of any other such lots or lots as the Auctioneer shall see fit; and
ii. To elect at any time to treat each contract for the sale of each such lots as interdependent with each other such contract or contracts and default under any such contract shall be treated as default under all such contracts;
g) To bid on behalf of the vendor or any prospective Buyer with or without disclosure;
h) In the event that any lot is not sold at the auction to offer to sell same thereafter by private treaty but otherwise subject to these
conditions; and
i) To refuse any person or persons admission to, or eject them from, the auction site.
5. Buyer Bids as Principal
Every Buyer shall be deemed to bid as principal unless prior to the auction he discloses to Arthouse Auctions that he will be bidding on behalf of the principal and supplies the full name and address of his principal and a copy of a written authority to bid for and on behalf of that principal and such authority is satisfactory to Arthouse Auctions.
6. Buyers Registration Form
Every bidder shall complete and sign a Buyer's Registration Form. Proof of identity acceptable to Arthouse Auctions may be required prior to entry to the auction premises.
7. Buyers Premium
The Buyer may be required to pay to Arthouse Auctions a Buyers Premium based on a percentage of the hammer price. The terms of that premium will be published prior to the auction. The Buyer acknowledges that Arthouse Auctions may also receive commission from the vendor.
8. G.S.T.
"G.S.T." means that goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Com)(as amended)
a. Arthouse Auctions will sell the property to be auctioned on a G.S.T. inclusive basis. The hammer price will therefore be inclusive of any G.S.T. payable. Arthouse Auctions will invoice the Purchaser for the hammer price and Buyers premium, the latter made up of 18% + 1.8% G.S.T equates to 19.8%. The vendor will be responsible to pay the G.S.T. to the Australian Tax Office.
9. Statements Made by Auctioneer at Rostrum
All conditions, notices, descriptions, statements and other matters in the catalogues and elsewhere concerning a lot are subject to any statements modifying or affecting the same made by the Auctioneer form the rostrum prior to any bid being accepted for the lot.
10. Catalogue Descriptions
a. Any representation or statement by Arthouse Auctions in any catalogue, advertisement or brochure as to the authorship, origin, date, age, period, attribution, genuineness, provenance, condition, quality, or estimated selling price of any lot is a statement of opinion only. Any illustrations in the catalogue are solely for the guidance of prospective Buyers and are not to be relied upon in terms of tone or colour or necessarily to reveal imperfections in any lot;
b. Many lots are of an age or nature which precludes their being in pristine condition and some prescriptions in the catalogue make references to damage and/or restoration. Such information is given for guidance only and the absence of such a reference does not imply that such a lot is free from defects nor does any reference to particular defects imply the absence of other;
c. Buyers must satisfy themselves as to all matters referred to in (a) and (b) above by inspection or otherwise prior to the date of the auction. The attention of Buyers is also drawn to the explanation of cataloguing practice (if any) contained in the catalogue.
11. Exclusions of Warranties
a. No error or incorrect description or deficiency in quantity shall vitiate the sale and the Buyers shall be bound to take delivery of the lot without any allowance or abatement in price.
b. Any warranties which might otherwise be implied by the Sale of Goods Act 1923 are hereby excluded and shall not apply. All Lots are sold "as is" and Arthouse Auctions and the Vendor make no representations or warranties as to any Lot other than those implied by the Common Law or by statute, the exclusion of which would render this Condition void or voidable or which would constitute an offense by the Auctioneer or the Vendor.
c. Intending bidders must satisfy themselves by inspection or otherwise as to the nature of the Lot and must accept same with all faults, patent or latent (if any).
d. No warranty shall be implied from any affirmation made at the auction or otherwise but in all cases where an express warranty is intended, the same shall only be enforceable if reduced to writing and signed by the Vendor or by the Auctioneer as agent for the Vendor.
12. Guarantee
a. If:
i. Within twenty-one (21) days of the date of auction Arthouse Auctions receives notice writing from the Buyer of any Lot that in his view the Lot is a Forgery, and
ii. Within fourteen (14) days of such notice, the Buyer returns the Lot to Arthouse Auctions in the same condition as at the date of auction, and
iii. Within a reasonable time thereafter the Buyer satisfies Arthouse Auctions is a Forgerty and that the Buyer is able to give a good and marketable title of the Lot free of any liens or encumbrances, then Arthouse Auctions will set aside the sale and refund the Buyer paid for the Lot.
b. Provide that the Buyer shall have no rights under this Condition if:
i. He or she does not give the notice in writing within twenty-one (21) days as specified in Clause 11 (a)(1)
ii. The catalogue description at the date of the auction was in accordance with the then generally accepted opinions of scholars or experts or fairly indicated that there was a conflict of such opinion, or
iii. It can be established that the Lot is a Forgery only by means of a scientific process not generally accepted for use until after the date of the auction or by means of a process which as at that date was unreasonably expensive or impractical or was likely to have caused damage to the Lot;
c. The Buyer shall not be entitled to claim under this Condition for more than the amount paid by him for the Lot and in particular shall have no claims for any loss, consequential loss or damage, whether direct or indirect, suffered by him
d. The benefit of this Condition shall not be assignable and shall rest solely and exclusively in the Buyer who shall be the person to whom the original invoice was made out by Arthouse Auction in respect to the Lot when sold and who has since the auction retained uninterrupted and unencumbered ownership thereof.
e. In the event of a dispute in this Condition then the matter shall be settled by arbitration, the Arbitrator to be nominated by the President of the Auctioneers and Valuers Association of Australia (Inc.). Both the Buyer and the Venor agree to be bound by that decision.
13. Agreement for Sale and Payment of Purchase Price Upon the Sale of a Lot, the Buyer Shall:
a. Unless he has already done so, give to Arthouse Auction his name and address, and, if so required by Arthouse Auction, proof of his identity and details of his bank and other suitable references;
b. Sign the agreement for sale (if any);
c. Pay to Arthouse Auction the Purchase Price within two (2) working days from the date of the auction unless such other terms or period have been specified or agreed to prior to the auction. Payment shall be made in Australian Dollars either in cash, by bank cheque or by telegraphic transfer direct to Arthouse Auction bank account. Personal cheques may be accepted at the discretion of Arthouse Auctions but, unless prior arrangements have been made, must be cleared before delivery of the lot.
d. The Auctioneer may at his discretion require immediate payment of the Purchase Price in cash or otherwise on the fall of the hammer.
14. Responsibility for Purchased Lots
A purchased Lot shall be at Buyers risk in all respects from the fall of the hammer whether or not payment has been made and neither Arthouse Auctions nor the Vendor shall therefore be liable for any loss or damage of any kind, whether caused by negligence or otherwise, notwithstanding that any Lot is in or under Arthouse Auction custody or control at the time of the occurrence of the loss or damage.
15. Collection of Purchases
a. The property in a Lot shall not pass to the Buyer until the Purchase Price has been paid in full and until all cheques given on account of same have been cleared.
b. No Lot may be taken away during the auction nor may any Lot be taken away until the Purchase Price has been paid in full.
c. The Buyer shall remove at his expense any Lot purchased by him within two (2) working days from the date of the auction or such other time as may be specified or agreed to by Arthouse Auction and in this regard time shall be of the essence.
d. Any removal shall be at risk of the Buyer and, in such removal, the Buyer shall do no damage or shall forthwith make good any damage which may be occasioned.
e. Any Lot or part thereof which the Buyer does not remove may therefore be removed by Arthouse Auction or by some person firm or company engaged by Arthouse Auction or the Vendor and/or at the place at which the auction took place or elsewhere. Such removal and/or storage (whether made for the safety of the goods or for the convenience of the Vendor or Arthouse Auction or to enable resale of the Lot pursuit to Condition 15) shall be deemed to have been made by Arthouse Auction at the request of the Buyer and all costs incurred by Arthouse Auction or the Vendor in relation thereto shall be immediately payable by the Buyer to Arthouse Auction who may sue for and recover the same as the quoted damages.
f. Any packing and handling of purchased Lots by Arthouse Auction is undertaken solely as a service to Buyers , and will only be undertaken at Arthouse Auction discretion and at the Buyer's risk. Arthouse Auction shall not be liable in any event for any damage to glass or frames irrespective of cause. Arthouse Auction shall not be liable for any errors or omissions or damage caused by packers and shippers that Arthouse Auction has recommended to Buyers.
g. No Buyer shall resell or otherwise deal with any Lot or part thereof within the auction premises.
16. Remedies for Non-Payment or Failure to Collect Purchases
a. If a Buyer fails either to pay for or to take away any purchased Lot within two (2) working days of the auction or such other period such as is specified at the auction or subsequently agreed to or any cheque given on account of the Purchase Price is dishonoured, Arthouse Auction shall, without further notice to the Buyer and in it's absolute discretion and without prejudice to any other rights or remedies it may have, and without being bound to give any notice, be entitled to exercise one or more of the following rights or remedies:
i. To absolutely forfeit any monies with the Buyer may have paid;
ii. To issue proceedings against the Buyer for damages for breach of contract;
iii. To rescind the sale of that or any other Lot sold to the Buyer at the same or any other auction;
iv. To resell the Lot or cause it to be resold by auction or private treaty. Any deficiency in the Purchase Price resulting from such resale (after giving credit for any payment made) together with the full costs incurred in connection with the resale (including commission and Expenses) shall be payable to Arthouse Auction by the Buyer and any surplus (if any) over the Proceeds of Sale of the initial shall belong to Arthouse Auction;
v. To store the Lot or cause it to be stored whether in its own premises or elsewhere at the sold expense and risk of the Buyer, and to release the Lot only after payment in full of the Purchase Price together with Expenses accrued and all other costs incurred in connection with the lot;
vi. To charge interest on the Purchase Price and Expenses at 18% calculated on a daily basis to the extent that they remain unpaid in part or in full for more than two (2) days from the date of the auction;
vii. To retain the Lot or any other Lot sold to the Buyer at same or any other auction and release the same only after payment of the Purchase Price and accrued expenses;
viii. To apply any monies at any time due and/or any Proceeds of Sale of any Lot then due or at any time thereafter becoming due to the Buyer by Arthouse Auction or the Vendor towards settlement of the Purchase Price and Expenses;
ix. To exercise a lien on any property of the Buyer which is in Arthouse Auction possession for any purpose;
x. To apply any payments by the Buyer to Arthouse Auction or any credits due by Arthouse Auction to the Buyer towards any sums owing from the Buyer to Arthouse Auction or to any associated company of Arthouse Auction without regard to any directions of the Buyer or his agent, whether express or implied.
b. Without limiting the generality of the foregoing, Arthouse Auction shall be entitled to recover from the Buyer;
i. The amount of any Vendors commission and Buyers Premium upon the Purchase which the Buyer did not complete, as determined in accordance with the published rates.
ii. Such sum for Expenses incurred by the Auctioneer in connection with or incidental to the auction or the resale, and
iii. Where applicable, any G.S.T., or any other tax or charge relating to or arising from the sale of the Lot.
c. Should the same Buyer purchase more than one Lot at the same sale, then Arthouse Auctions may at any time elect to treat each contract as interdependent with the others and default under any one contract shall constitute default and under any or all of the others.
17. Auctioneer Not Liable for Damage Loss or Injury
All persons attending an auction do so at their own risk and the Auctioneer shall not be liable for any damage, loss or injury to person or property suffered for any cause whatsoever at any auction except in so far as the damage, loss or injury is caused by the direct negligence by Arthouse Auctions.
18. Law of these Conditions
These Conditions of Business shall be governed by and construed in accordance with the law of the State in which the sale has been conducted and all parties concerned hereby submit to the exclusive jurisdiction of that State's Courts.
19. Sale by Private Treaty
Where applicable these Conditions shall apply where relevant to a sale by auction or private treaty.
20. Notices
Any notice given hereunder shall be in writing and if given by post shall be deemed to have been duly received by the addressee in the ordinary course of the post.
21. Export Licence
Any application for a export license by the Buyer pursuant to any of the following:
i. The Movable Cultural Heritage Act (1985); and
ii. The Wildlife Protection (Regulations of Exports and Imports) Act 1982; and
iii. And any other legislation or regulation that may prohibit the movement of or export of a lot from State to State or Territory and/or out of the Commonwealth of Australia shall not affect the obligations of the Buyer to make payment to Arthouse Auctions within the time stipulated by these conditions. Unless there is an express written agreement by Arthouse Auction to make an application for an export licence on his or her behalf, then all disbursements and out of pocket expenses that relate to such an application shall be to the buyer's account.
