Terms
CONDITIONS OF BUSINESS
1. Australian Book Auctions its servants and agents ("the Auctioneer") is agent only for the Seller and is not responsible for any act or omission or default of the Seller or the Buyer.
2a. The Auctioneer has the right in his absolute discretion to refuse any person admission to or to eject any person from the place of auction.
2b. As a service to bidders Australian Book Auctions will, if so instructed in writing at least 24 hours prior to the sale:
(i) make bids on behalf of prospective buyers; or,
(ii) make all reasonable efforts to contact prospective buyers by telephone so as to enable them to participate in bidding by telephone on any lot with a lower estimate of at least $1000;
but in no circumstance will the Auctioneer be responsible to the Seller or to any prospective buyers for any failure or neglect to do so.
3a. Every prospective buyer must complete and sign a registration form and provide all identification that may be required by the Auctioneer before bidding at any auction.
3b. The highest bidder shall be the Buyer subject to the Seller's reserve price if any which is confidential between the Seller and the Auctioneer. The Auctioneer may, however, refuse to accept any bid which is not in the best interests of the Seller.
3c. In the event of any error or dispute during or after the sale of any lot, the Auctioneer may in his absolute discretion and regardless of the fall of the hammer put up such lot again for sale or withdraw the lot from sale. The decision of the Auctioneer shall be final.
3d. The Auctioneer has the right in his absolute discretion:
(i) to refuse any bid;
(ii) to advance and regulate the bidding as he decides;
(iii) to refuse any bid that does not exceed the previous bid by at least ten percent or by such other proportion as the auctioneer may determine;
(iv) to divide any lot, combine any two or more lots, or withdraw any lot from sale;
(v) bid on behalf of the Seller or of other prospective buyers without disclosure.
3e. Any bid acknowledged and relied upon by the Auctioneer may not be withdrawn without the approval of the auctioneer.
3f. In the event that any lot fails to reach its reserve price and is bought in on behalf of the Seller, the Auctioneer may in his absolute discretion refer the bid of the highest bidder to the Seller. If the Seller accepts such bid then the lot shall be deemed to have been sold at the auction and the obligations of Seller and Buyer to the Auctioneer in respect of such lot are the same as if it had been sold at auction.
3g. Notwithstanding anything else in these Conditions, in the event that any lot is unsold the Auctioneer has the right to sell such lot thereafter by private treaty but otherwise subject to these Conditions and the obligations of Seller and Buyer to the Auctioneer in respect of such lot are the same as if it had been sold at auction.
3h. All lots are in all respects at the risk of the Buyer after the fall of the hammer.
4a. Subject to the Auctioneer's discretion the fall of the hammer marks his acceptance of the highest bid and the conclusion of a Contract for Sale between the Buyer and the Seller. It shall not be requisite for the Buyer to sign the sale book but the entry of the Buyer's name or number and the amount of his bid in the sale book by the Auctioneer without any further authority or consent from the Buyer than this condition shall be final and binding on all parties and such entry together with these Conditions shall constitute the whole of the contract. A deposit or the whole of the Purchase Price may be demanded by the Auctioneer at the fall of the hammer. The title to a lot shall not pass to the Buyer until the Purchase Price (plus interest and any other charges if applicable) has been paid in full.
4b. The Buyer must pay to the Auctioneer in addition to the hammer price on each lot a buyer's premium of 19.8% (inclusive of GST). The hammer price plus the buyer's premium constitute the Purchase Price of a lot. The Buyer acknowledges that the Auctioneer as agent for the Seller may also receive a commission from the Seller.
4c. The successful bidder shall be deemed to be the Buyer and be personally liable unless it has been agreed in writing at the time of registration and prior to the sale that a bidder is acting as agent on behalf of a third party and that such third party is acceptable to the Auctioneer.
4d. It shall be the responsibility of the Buyer to obtain any permit required under the Protection of Movable Cultural Heritage Act 1986, the Wildlife Protection (Regulation of Exports and Imports) Act 1982 and any other legislation, all as amended, which may restrict or prohibit the export of a lot outside a state or the Commonwealth of Australia. Refusal of any permit shall not vitiate the sale and the Buyer shall be bound to take delivery of the lot without an allowance or abatement in price.
5a. At the conclusion of the auction the Buyer will immediately pay to the Auctioneer the whole of the Purchase Price. Payment of the Purchase Price shall be made in Australian dollars in cash. Payment by personal cheque or bank cheque in Australian dollars drawn on an Australian bank may be accepted at the Auctioneer's discretion and, unless prior arrangements have been made, must be cleared before delivery of purchases. Credit card payments by Mastercard or Visa, can also be accepted by prior arrangement. Payments made by credit card are subject to an additional charge of 1.1% to cover bank fees and charges. The Buyer will pay interest at a rate of 3% per month on the Purchase Price in the event of the Purchase Price remaining unpaid for more than 24 hours after the sale.
5b. Any payments made to the Auctioneer may be applied by the Auctioneer towards any sums owing from that Buyer to the Auctioneer on any account whatever without regard to any direction of the Buyer or his agent, whether express or implied as to how payment should be applied.
5c. Should one Buyer purchase more than one lot at the same auction then each contract shall be interdependent with the others and default under one shall be deemed to be default under all the others, unless the Auctioneer should elect otherwise.
5d. All lots purchased must be collected from the place of auction at the Buyer's expense not later than noon on the day following the auction and provided the full Purchase Price has been paid to the Auctioneer.
5e. If a Buyer has not collected any or all of his purchases by noon of the day following the auction, the Auctioneer may place the property in storage at the Buyer's risk and the Buyer shall be responsible for all removal, storage and insurance charges on such property. Packing, handling and transportation of all purchased lots is entirely at the risk and expense of the Buyer. In no event will the Auctioneer be liable for loss of or damage to purchased lots irrespective of cause, including negligence, notwithstanding that the property is in the custody and control of the Auctioneer at the time of the occurrence of such loss or damage.
5f. In the event of a breach by the Buyer of any of the terms of these Conditions then any deposit or other sums paid to the Auctioneer shall be forfeited and the Auctioneer in his absolute discretion, without prejudice to any other rights or remedies available to him, will be entitled without notice to the Buyer to dispose of the Buyer's purchases by public auction or private treaty and the Buyer shall pay to the Auctioneer any resulting deficiency in the Purchase Price (plus interest) and any other costs incurred as a result of the Buyer's default, including storage, freight, insurance and any other charges whatsoever. Any surplus shall be paid to the Seller.
6a. Any warranties express or implied on the part of the Auctioneer or Seller, other than those that are expressly contained in these Conditions, are hereby excluded. Without limiting the generality of the foregoing any representation in any catalogue, advertisement, condition report, or made orally or in writing elsewhere as to authorship, origin, date, age, size, medium, attribution, genuineness, provenance, condition or estimated selling price is a statement of opinion only. Prospective buyers must satisfy themselves as to all matters relating to the condition, description, authenticity and the nature of any lot by inspection or by obtaining any independent expert advice reasonable in view of the buyers' particular expertise and the value of the lot prior to the date of the auction and the Buyer must take delivery of the lot with all faults patent or latent (if any). Accordingly, buyers will be deemed to have knowledge of all matters which they could reasonably be expected to find out given their particular expertise and the exercise by them of reasonable due diligence.
6b. All conditions, notices, descriptions, statements and other matters concerning a lot are subject to any statement modifying or affecting that lot made by the Auctioneer from the rostrum prior to any bid being accepted on that lot.
6c. All lots are sold "as is" and no error or misdescription or deficiency in quantity shall vitiate the sale and the Buyer shall be bound to take delivery of the lot without an allowance or abatement in price.
6d. Many lots are of an age or nature that precludes their being in perfect condition and reference may be made in some descriptions to damage, restoration, or defect. Such information is given for guidance only and the absence of such reference does not imply that a lot is free from defects nor does the reference to particular defects imply the absence of others. Illustrations of any lot are for the guidance of prospective buyers and are not to be relied upon to determine either tone or colour of any item or to reveal imperfections (if any).
6e. Neither the Auctioneer nor the Seller make any representations or warranties, implied or express, as to whether any lot is subject to copyrights nor whether the Buyer acquires any copyrights, including but not limited to reproduction rights in any lot sold.
6f. The Seller gives to Australian Book Auctions full and absolute right to photograph and illustrate any lot consigned for sale and to use such photographs and illustrations at any time at its absolute discretion whether or not in connection with the sale. The Buyer and the Seller acknowledges that the copyright of all photographs taken and illustrations of any lot by Australian Book Auctions shall be the absolute property of Australian Book Auctions.
7a. Notwithstanding anything else in these Conditions if within fourteen days of the sale notice in writing from the Buyer is given to the Auctioneer that in the Buyer's opinion the lot is a forgery that at the time of the sale had a value materially less than the Purchase Price then the lot may be returned within a reasonably agreed time to the Auctioneer. Should the Auctioneer be satisfied that:
(i) the lot is returned in the same condition as it was at the date of the sale; and
(ii) the Buyer establishes that he has not sold or transferred the lot, and that no rights have been created in favour of any third party in respect of that lot; and
(iii) the Buyer establishes that the lot is a forgery, that is to say an imitation originally conceived and executed as a whole with a fraudulent intention to deceive as to authorship, age, origin, period, culture or source and where the correct description as to such matters is not fairly reflected by the catalogue description amended by any statement modifying or affecting that lot made by the Auctioneer from the rostrum prior to any bid being accepted on that lot. No lot shall be capable of being a forgery by reason of any damage, restoration of any kind (including pen facsimile), defects of binding, staining, spotting, foxing, oxidisation, toning, absence of blank leaves or list of plates or list of subscribers or advertisement leaves or cancel leaves or errata slips or errata leaves;
then the sale will be rescinded and the amount paid by the Buyer will be refunded.
7b. The Buyer shall be entitled to claim under this condition only the Purchase Price, being the hammer price plus the buyer's premium, or part thereof actually paid by the Buyer to the Auctioneer for the lot and shall not include a refund of any sales tax, storage charge, insurance, interest, commissions, or any other costs to the Buyer other than the Purchase Price actually paid and specifically the Buyer shall have no claims for any direct or consequential loss suffered or expense incurred by him.
7c. This condition does not apply to any multiple lot, box lot, shelf lot, any uncatalogued lot, or any lot described in the catalogue as sold "not subject to return", or "w.a.f." (i.e. with all faults).
7d. The benefit of this condition is a non-assignable exclusive right in favour of the actual Buyer of the lot at the auction and, without limiting the generality of the foregoing, may not be assigned to a third party by a Buyer acting as an agent on behalf of such third party except when in accordance with clause 4c of these Conditions.
7e. The Buyer shall not be entitled to claim under this condition if he is in breach of any of the terms of these Conditions.
7f. The terms of this condition shall not operate so as to exclude such conditions or warranties as are implied by state of federal law and which cannot legally be excluded or where such exclusion would render any contract with the Buyer, or any part of such a contract, void or voidable.
8a. These Conditions of Business shall be governed and construed in accordance with the laws of the State of Victoria, Australia, and all parties concerned hereby submit to the exclusive jurisdiction of the courts of that state.
8b. If any part of these Conditions of Business is found by any court to be invalid, illegal or unenforceable, that part may be discounted and the rest of the conditions shall continue to be valid and enforceable to the fullest extent permitted by law.
