Conditions of Sale
14. The Buyer
14.1 The Auctioneer may knock down a Lot to the
person who, at his or her absolute discretion, he or
she believes is the highest bidder acceptable to the
Company, subject to any Agreed Reserve. Any dispute
may be determined by the Auctioneer at his or her
absolute discretion and the decision of the Auctioneer
shall be final.
14.2 Every bidder shall be deemed to act as principal
unless prior to the commencement of the Sale there is
a written acceptance by the Company that the bidder
is acting on behalf of a third party and that the bidder is
not personally liable.
14.3 No person shall be entitled to bid at a Sale
without first having completed and delivered to the
Company a bidder registration form acceptable to
the Company and the registration form will include an
acknowledgement by a bidder that they are bound by
these Conditions.
The Company is the agent of the Seller, not the
Buyer, and it is not intended that there be any legal
relationship between the Company and the Buyer.
15. Buyers to satisfy themselves
15.1 Lots are sold on an 'as is' basis and it is the
responsibility of prospective Buyers to examine a Lot
prior to the Sale and to satisfy themselves as to the
condition of the Lot and that the Lot matches any
written or oral description provided by the Seller or the
Company.
15.2 All descriptions provided by the Seller or
the Company are subject to any statements made
by the Auctioneer from the rostrum prior to any bid
being accepted for the Lot and any illustrations in the
Catalogue are solely for the guidance of prospective
Buyers and should not be relied upon in terms of tone
or colour or necessarily to reveal imperfections in any
Lot.
15.3 In bidding for any Lot, prospective Buyers agree
that they have not been induced to make any bid by
any representation, to the extent the representation
is not misleading or deceptive, in respect of the Lot
by the Company, including any representation arising
from a document that has been provided by the Seller
to the Company in association with the Sale of a Lot
and made available by the Company for inspection
by prospective Buyers. If prospective Buyers wish to
rely on any representation made by or on behalf of the
Company, they must advise the Company in writing of
this prior to the Sale.
15.4 If the Company is found to be liable for any
loss or damage suffered, other than in circumstances
where the loss or damage suffered is as a result of the
Company (and its employees or agents) not acting with
due care and skill or the Company (and its employees or
agents) engaging in misleading or deceptive conduct,
(a) the maximum liability of the Company to a Buyer
shall be the Sale Price of the relevant Lot and the
Premium (if paid by the Buyer); or
(b) the maximum liability of the Company to a Seller
shall be the Sale Proceeds of the relevant Lot,
and the Company shall not be liable for any
consequential or indirect loss whatsoever.
15.5 If a Lot is proved to the reasonable satisfaction
of the Company to be a Forgery then the Company
may rescind the Sale as agent of the Seller in which
case the Seller shall refund the Sale Proceeds to the
Company, which will refund the Purchase Price to the
Buyer and make the Lot available to the Seller for
collection provided that:
(a) the Buyer provides written notice to the Company
within 14 days of the auction date of the Forgery
allegations;
(b) the Buyer produces evidence from two
independent experts who both agree that the Lot is a
Forgery, however, the Company reserves the right to
request further expert evidence if, in its sole discretion,
it is not satisfied with the findings by the experts;
(c) the Buyer returns the Lot to the Company in the
same condition as it was at the date of the Sale;
(d) the Buyer warrants that it has not sold or transferred
the Lot nor created any rights in respect thereof in
favour of any third party;
(e) the Seller has refunded the Sale Proceeds to the
Company.
15.6 The benefits of this clause are for the Buyer only
and cannot be assigned.
15.7 Despite clause 15.5 the Company has no
obligation to rescind the Sale and the Buyer shall not
be entitled to rescind the Sale if in the opinion of the
Company:
(a) the description of the Lot in the Catalogue was
accurate at the time of its publication based on the
opinion of an expert in the relevant area of expertise at
that time; or
(b) the only method of establishing at the time of
publication of the Catalogue that the Lot was a Forgery
would have been a scientific process not then in
general usage, or which would have been too costly or
impractical or would have been likely to cause damage
to the Lot.
15.8 If the conditions of clause 15.5 are satisfied
and clause 15.7 does not apply, the maximum liability
of the Company to a Buyer shall be the Sale Price of
the relevant Lot and the Premium (if paid by the Buyer)
but shall not include a refund of storage charges,
insurance, interest and the like, or any consequential or
indirect loss or damage suffered or expense incurred by
the Buyer.
16. Premium
Unless otherwise stated in the Catalogue, the Buyer
shall pay the Company the Premium. The Buyer
acknowledges that the Company may also receive a
Seller's Commission.
17. Contract of sale
17.1 Subject to the Company's discretion, on the
acceptance of a bid by the fall of the Auctioneer's
hammer a contract of sale is made between the Seller
and the Buyer. The Company is not a party to the
contract of sale and shall not be liable for any breach of
that contract by either the Seller or the Buyer.
17.2 Risk of the Lot will pass to the Buyer on the fall
of the Auctioneer's hammer.
17.3 Title to the Lot will pass to the Buyer when the
full Purchase Price has been received by the Company
by way of cleared funds.
18. Payment by Buyer
18.1 At the same time that a prospective Buyer
registers to bid he or she must give the Company
his or her name and address and, if requested by the
Company, banking or other suitable references or
identification and an acknowledgement that they have
read and agreed to be bound by these Conditions.
18.2 The Purchase Price must be paid to the
Company not later than 4.00pm on the second day
after the Sale unless otherwise stated in the Catalogue.
18.3 On the fall of the Auctioneer's hammer, the
successful bidder on any V Lot, and other Lots as
determined by the Company at its absolute discretion,
may be required to provide a deposit equal to 15% of
the Hammer Price, either in cash, approved credit card
or approved bank cheque. If the successful bidder
does not do so then the Company may rescind the Sale
and resubmit the Lot for a Second Auction.
18.4 Absentee or telephone bidders who are
unable to attend a Sale and who wish to bid on any
V Lot and other Lots as determined by the Company
at its absolute discretion may be required to provide a
deposit equal to 15% of the low end of the Estimated
Selling Range (but no less than $500), either in cash,
approved credit card or approved bank cheque prior to
the Sale. In the event that such absentee or telephone
bidders are unsuccessful then the Company will refund
any deposits received within 5 working days from day of
the Sale.
18.5 Full payment for all Lots must be made to
the Company by cash, electronic funds transfer or
approved credit card. Where the Buyer wishes to pay
by bank cheque, personal or company cheque, and the
Company has agreed that the Buyer may do so, a V Lot
will not be released until the cheque has cleared and
other Lots may not be released until the cheque has
been cleared.
18.6 No Lot may be collected until the full Purchase
Price has been received by the Company unless prior
arrangements in writing have been made with the
Company before the date of the Sale, provided always
that ownership of the Lot will not pass to the Buyer until
cleared funds in payment of the full Purchase Price have
been received by the Company.
19. Collection of Purchases
All Lots must be paid for and collected by the second
day after the Sale unless otherwise stated in the
Catalogue. The Buyer shall be responsible for any
removal, storage, or other charges for any Lot after this
day.
20. Responsibility for Lots purchased
20.1 The Buyer shall be responsible for any loss or
damage to, or caused by, a Lot purchased by the Buyer
from the fall of the Auctioneer's hammer and neither
the Company nor its employees or agents shall be
responsible for any Claim while the Lot is in its power,
possession or custody, except where the Company
(and its employees or agents) has not acted with due
care and skill.
20.2 Unless expressly stated in a Catalogue, the
Company has no knowledge of whether a V Lot
complies with the provisions of any road traffic or
maritime Acts and Regulations. The Buyer of a V Lot
who intends to use it on a public road or waterway
shall be responsible for ensuring that it complies with
the provisions of any road traffic or maritime Acts and
Regulations.
20.3 The Buyer shall be solely responsible for
obtaining any export licence that may be required in
connection with a purchased Lot.
20.4 The Buyer of a firearm must obtain any
certificates and licences required by law. The Company
may refuse delivery of a Lot to a Buyer without evidence
of compliance by the Buyer.
21. Non-payment or failure to collect
21.1 If the Purchase Price in respect of a Lot is not paid
for in full in accordance with clause 18, the Company
may, after a period of two weeks (during which time the
Company will attempt to contact the Buyer), and in its
absolute discretion and without prejudice to any other
rights or remedies it may have, exercise one or more of
the following remedies:
(a) re-sell the Lot without reserve by auction, private
treaty or any other means provided that 2 days prior
notice is given to the Buyer who agrees not to challenge
the resale price achieved in respect of the Lot;
(b) remove, store and further insure the Lot at the
expense of the Buyer;
(c) charge interest on the Purchase Price at the rate
of l.65% per month or part thereof from the date upon
which the Purchase Price becomes payable until the
full Purchase Price has been received by the Company
from a resale;
(d) retain any Lot sold to the Buyer at the same or any
other auction until payment of the Purchase Price by
the Buyer;
(e) apply the proceeds of the Sale of any Lot then due
or at any time thereafter becoming due to the Buyer in
payment or part payment of the Purchase Price;
(f) exercise a lien on or exercise a power of sale
over any other property of the Buyer in the power,
possession or control of the Company;
(g) rescind the Sale of that Lot or any other Lot sold by
the Seller to the Buyer at the same or any other auction
sale;
(h) repossess any goods comprising any Lot in respect
of which payment is overdue and thereafter resell the
same, and for this purpose the Buyer hereby grants an
irrevocable licence to the Company to enter upon all
or any of the Buyer's premises (with or without vehicles)
during normal business hours, without prejudice to any
other rights of the Company;
(i) issue legal proceedings against the Buyer;
(ii) reject a bid from the Buyer at any future auction
sale or require the Buyer to pay a deposit before any
bid is accepted by the Company at any future Sale.
21.2 If the Lot is not collected in accordance with
clause 19, the Company may, after a period of two
weeks (during which time the Company will attempt to
contact the Buyer), and in its absolute discretion and
without prejudice to any other rights or remedies it may
have, exercise one or more of the following remedies:
(a) remove, store and further insure the Lot at the
expense of the Buyer;
(b) rescind the Sale of that Lot or any other Lot sold by
the Seller to the Buyer at the same or any other auction
sale.
21.3 The Buyer shall pay all reasonable legal and
other costs reasonably incurred by the Company or
the Seller (whether or not Court proceedings shall have
been issued) as a result of the Buyer's non-payment for
and/or failure to collect a Lot, on a full indemnity basis,
together with interest thereon at the rate specified in
clause 21.1(c) from the date upon which the Buyer shall
have become liable to pay costs.
22. Absentee or commission bids
22.1 An absentee bidder may make an absentee
bid in the form of written instructions directing the
Company to bid on one or more Lots up to a maximum
amount specified for each Lot. The Company will
execute the absentee bid at the lowest possible price
taking into account the Agreed Reserve and other bids.
There is no charge for this service. If identical bids
are left by two or more parties, the first bid received
by the Company will take preference. The Auctioneer
may execute bids for absentee bidders directly from
the rostrum, clearly identifying these as absentee or
commission bids.
22.2 The Company is prepared to execute telephone
bids on behalf of prospective Buyers who are not at the
auction on the condition that the prospective Buyer
acknowledges that taking instructions by telephone
in the course of an auction has inherent risks (such
as miscommunication, misunderstanding or other
problems caused by a telecommunications fault or
failure including a mobile telephone connection falling
out). The Company reserves the right to charge for this
service.
22.3 The Company shall not be responsible for any
errors or omissions in connection with the execution of
absentee or telephone bids.
23. GST
23.1 Interpretation
Words or expressions used in this clause 23 that are
defined in A New Tax System (Goods and Services Tax)
Act 1999 have the same meaning.
23.2 GST and amounts payable to the Company:
(a) All amounts owing by the Seller to the Company
(including, without limitation, the Seller's Commission,
the Offer Fee, the Insurance Fee, and Expenses) under
this agreement do not include GST. If and to the extent
that any amount owing by the Seller to the Company is
consideration for a taxable supply by the Company, the
amount shall be increased by an amount equal to the
GST payable by the Company on that supply.
(b) All amounts payable by the Buyer to the Company
under this agreement (including, without limitation, the
Premium) do not include GST. If and to the extent that
any amount payable by the Buyer to the Company is
consideration for a taxable supply by the Company, the
Buyer must pay to the Company, an additional amount
equal to the GST payable on the supply.
23.3 GST and amounts payable to the Seller
(a) The Seller must, on or before the date of the Sale,
notify the Company whether it is registered for GST,
and if so, must provide its ABN to the Seller at the same
time.
(b) If the Seller notifies the Company that it is
registered for GST in accordance with clause 23.3(a):
(i) the Seller authorises the Company as its agent, to
issue a tax invoice to the Buyer in respect of the Sale of
any Lot which is a taxable supply; and
(ii) on payment of the Sale Proceeds to the Seller in
accordance with clause 10, the Company will:
(A) notify the Seller of the amount of GST included
in the Sale Price for the Lot to enable the Seller to
determine its GST liability on the Sale; and
(B) give the Seller a tax invoice for any taxable
supply made by the Company to the Seller under this
agreement (including, without limitation, any supply
for which the Seller's Commission, the Offer Fee,
the Insurance Fee, and Expenses are consideration)
including any amounts payable on account of GST in
accordance with clause 23.2(a).
23.4 GST on sale of Lot to Buyer
(a) The Sale Price is inclusive of GST (if any) and shall
not be increased any further for any GST payable by the
Seller in respect of the Sale.
(b) If the Seller has informed the Company that it is
registered for GST in accordance with clause 23.3(a),
the Company will, upon request by the Buyer or
otherwise at its discretion, issue a tax invoice to the
Buyer showing:
(i) the amount of GST included in the Sale Price; and
(ii) any amounts payable by the Buyer to the Company
in consideration for any taxable supply made by the
Company to the Buyer under this agreement and any
GST payable on the supply in accordance with clause
23.2(b).
(c) If the Seller does not inform the Company that it
is registered for GST in accordance with clause 23.3(a),
the Sale will be presumed not to be a taxable supply,
and the Company will only issue a tax invoice for any
taxable supply made by the Company to the Buyer
under this agreement (including, without limitation, any
taxable supply for which the Premium is consideration
and any amounts payable on account of GST payable
on that supply in accordance with clause 23.2(b)).
(d) A Buyer of a Lot sold by a GST registered Seller
that is subsequently exported from Australia may be
able to claim a refund from the Company for any GST
included in the Sale Price of a Lot if, within 60 days of
the Sale, the Buyer provides the Company with:
(i) all relevant shipping documents confirming that
the goods have been exported from Australia; and
(ii) evidence to the reasonable satisfaction of the
Company that the Buyer is not registered or required
to be registered for GST in Australia.
However, the Company need not refund any GST
amount to the Buyer under this clause, unless and until
it receives a refund of this amount from the Seller.
23.5 Obligations of non-resident Sellers
(a) This clause 23.5 only applies to Sellers that are nonresidents
of Australia.
(b) The Seller must, on or before any Lot is imported
into Australia for Sale, notify the Company as to:
(i) whether the Seller will be selling the Lot in the
course of carrying on an enterprise; and
(ii) whether the Seller is registered for GST in Australia.
(c) The Seller acknowledges and agrees that the
Company has the right to deduct and retain from the
Sale Proceeds, an amount equal to any GST for which
the Company is or becomes liable to pay in respect
of the importation or Sale of a Lot, including, without
limitation, any GST payable pursuant to Division 57 of
the GST Act.
23.6 Reimbursements (net down)
If a payment to a party under this agreement is a
reimbursement or indemnification, calculated by
reference to a loss, cost or expense incurred by that
party, then the payment will be reduced by the amount
of any input tax credit to which that party is entitled on
the acquisition of the taxable supply to which that loss,
cost or expense relates.
24. Currency converter
The Company may provide a currency converter
for the convenience of bidders. The rates quoted
for conversion of other currencies to Dollars (or the
currency in which the relevant Sale is conducted) are
indicative only and neither the Company nor its agents
shall be responsible for any errors or omissions in the
converter.
25. Governing Law and Jurisdiction
25.1 These Conditions are governed by and shall be
construed in accordance with the law of the State in
which the Sale is conducted ('Sale State').
25.2 The Company, the Seller, the Buyer and any
bidders at the Sale irrevocably and unconditionally
submit to the exclusive jurisdiction of the courts of the
Sale State.
26. Notices
26.1 A notice, demand, consent or approval or
communication under these Conditions ('Notice') must
be:
(a) in writing, in English, and signed by a person duly
authorised by the sender; and
(b) delivered by hand or sent by prepaid post, and by
airmail when sent to a destination outside Australia, or
facsimile or email to the recipient's address as varied by
any Notice given by the recipient to the sender.
26.2 A Notice given in accordance with clause 26.1
takes effect when it is taken to have been received (or at
a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by facsimile, on receipt by the sender
of the transmission report at the conclusion of the
transmission;
(c) if sent by mail, two days after the date of posting
if posted to an address within the country of posting
and seven days after the date of posting if posted to a
country outside Australia; and
(d) if sent by email, at the time of transmission unless
the sender is notified that the email was undeliverable.
26.3 In proving service by delivery:
(a) by hand, it shall be necessary only to produce a
receipt for the communication signed by or on behalf
of the recipient;
(b) by facsimile, it shall be necessary only to produce
the confirmatory transmission report;
(c) by post, it shall be necessary only to prove that the
communication was contained in a pre-paid envelope
which was duly addressed, posted and, in the case
of the Notice being sent to a destination outside
Australia, was sent by airmail; and
(d) by email, it shall be necessary only to prove that the
communication was sent to the correct email address.
27. General provisions
27.1 The non-exercise of or delay in exercising any
power or right of a party does not operate as a waiver
of that power or right, nor does any single exercise of a
power or right preclude any other or further exercise of
it or the exercise of any other power or right. A power
or right may only be waived in writing, signed by the
party to be bound by the waiver.
27.2 These Conditions constitute the entire
agreement of the parties on the subject matter.
All representations, communications and prior
agreements, to the extent they are not misleading or
deceptive, in relation to the subject matter are merged
in and superseded by these Conditions.
27.3 The parties agree that, if the whole or any
part of any one or more provisions is judged invalid
or unenforceable, that portion will be deemed to be
deleted and will not affect the validity or enforceability
of the remaining provisions.
27.4 Neither party shall be liable for any loss or
damage or be deemed to be in breach of these
Conditions if its failure to perform or failure to cure
any of its respective obligations hereunder results
from any event or circumstance beyond its reasonable
control. The party interfered with shall give the
other party prompt written notice of any such force
majeure condition. If notice is provided, the time for
performance or cure shall be extended for a period
equal to the duration of the force majeure event or
circumstance described in such notice, except that any
such cause shall not excuse the payment of any sums
owed to the Company prior to, during, or after any such
force majeure condition.
28. Privacy Statement
In our dealings with vendors and buyers it is necessary
to collect personal information such as:
(a) Your Name;
(b) Your Company name and ABN;
(c) Your residential address;
(d) Your business address;
(e) Your email address;
(f) Your facsimile number;
(g) Your telephone numbers;
(h) Your Drivers Licence details;
(i) Your credit card details; and
(j) Your bank account details.
When you provide us with your personal information,
we rely on the accuracy of that information. To assist
with the accuracy please contact us immediately if any
of the details provided have changed. We will only use
your personal information for the purpose for which
you have provided it unless you otherwise consent.
We will not disclose your personal information to third
parties unless you consent or where such disclosure is
required or authorised by law.
We will at your request provide access to the
information we hold about you for the purpose of
correcting or updating that information. We will store
your information in a manner that ensures security
against unauthorised access, alteration or deletion at a
level commensurate with its sensitivity.
29. Resale Royalty
The Seller:
(a) acknowledges that he or she understands his
or her legal obligations under the Resale Royalty for
Visual Artists Act 2009 (the Act);
(b) undertakes to comply with all requirements of the
Act, including by providing its agent, the company,
with accurate information sufficient for compliance
with sections 28 and 29 of the Act;
(c) undertakes to indemnify the company for any
loss incurred by the company as a result of the
Seller's failure to comply with any of the Seller's legal
obligations under the Act; and
(d) acknowledges that if he or she fails to comply
with any of his or her legal obligations under the
Act, the company may provide the Seller's name and
contact details to Copyright Agency Limited (CAL).
