AUCTION TERMS AND CONDITIONS OF SALE
IMPORTANT: Additional information applicable to the sale of any Lot, or to sales generally, may be set out in the Catalogue, in an insert in the Catalogue and/or in a notice displayed at the Auction venue and you should read them as well. Announcements affecting the Auction may also be given verbally before and during the Auction without prior written notice. You should be alert to the possibility of changes and ask in advance of Bidding if there have been any.
Any terms set out or referred to in the Catalogue, in any Addendum or in an announcement at the Auction or otherwise specified by the Auctioneer shall also apply. To the extent that these Terms and Conditions are inconsistent with any of the above, these Terms and Conditions shall prevail (such additional terms which are not inconsistent with these Terms and Conditions shall also apply in addition to these Terms and Conditions).
- Glossary and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following words and expressions shall have the following meanings:
Addendum An addition to these Terms and Conditions and/or to the particulars of a Lot, whether contained in an insert to the Catalogue, a written notice from the Auctioneers or a verbal announcement at the Auction.
Auction The auction advertised in the Catalogue, or on our website or third party websites – being any auction (whether a live auction or an online auction) conducted pursuant to these Terms and Conditions.
Auctioneer(s) The auctioneers at the Auction. The expression “the Auctioneer” includes, where the context is appropriate, its employees and agents and any person to whom conduct of the Auction is delegated. The Auctioneer entity is: Pro Auction Ltd (UK Company number: 05059610).
Bid An offer to purchase any Lot whether by bidding at Auction or offering (if permitted by us in relation to the Lot) to purchase by private treaty or tender. Bids and Bidding shall be construed accordingly.
Bidder Any person who makes a Bid. Every Bidder shall be deemed to act as principal unless the Auctioneer acknowledges in writing that he acts as agent on behalf of a named principal.
Buyer’s Premium A 22% commission on the sale price of the Lot (plus VAT) payable by the Buyer on the completion of a sale of a Lot (and for the avoidance of doubt, the Auctioneer, when acting as agent for the Seller, may also receive commission from the Seller).
Business Day Any day except (a) a Saturday or a Sunday; and (b) a bank or public holiday in England and Wales.
Buyer The person who agrees to buy the Lot (if two or more people are jointly the Buyer, their obligations can be enforced against them jointly or against each of them separately).
Catalogue The official catalogue of the Auctioneer containing a description of the Lot, including any supplement to it.
Contract The contract by which the Seller agrees to sell and the Buyer agrees to buy the Lot.
Clearance Date and Time The scheduled date and time on which all Lots must be removed by the Buyer as determined by the Auctioneer from time to time.
Data Protection Laws The Data Protection Act 2018 and any similar legislation pertaining to the security, confidentiality, protection, or privacy of personal data.
Deposit The deposit payable by the Buyer to the Auctioneer on the day of the Auction following a sale being agreed.
Lot(s) Each separate chattel or item (including but not limited to plant, machinery, art, vintage products, furniture and trade stocks) or (as the case may be) the property that the Seller has agreed to sell and the Buyer to buy; and described in the Catalogue, on the Auctioneer’s website or on the Auctioneer’s invoice.
Practitioners Insolvency practitioners for the purposes of the Insolvency Act 1986 (or, in relation to jurisdictions outside the United Kingdom, any similar official).
Seller The person selling the Lot, upon whose instructions the Auctioneer is conducting the sale (if two or more are jointly the Seller, we can act jointly for them both or separately at our discretion).
VAT Value Added Tax or any other tax of a similar nature.
we (and us and our) The Auctioneers.
you (and your) Someone who has a copy of the Catalogue, or someone who attends the Auction, or a Bidder, whether or not a Buyer.
1.2 A contract subject to these Terms and Conditions shall be binding on and enure to the benefit of, the parties and their respective successors, personal representatives and permitted assigns, and references to a party shall include that party's successors, personal representatives and permitted assigns.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and the plural shall include the singular. A person includes a corporate body. Words of one gender include the other genders.
1.4 Unless expressly provided otherwise in these Terms and Conditions, a reference to writing or written includes email.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 Unless the context requires otherwise, a reference to any statute or regulations includes any amendments to or re-enactments of the same and any subordinate legislation, as they have been modified or re-enacted by the date of the Auction or the date of the Contract (as applicable).
- Auctioneer’s Role
2.1 In its role as Auctioneer of Lots, the Auctioneer acts solely for and in the interests of the Seller. The Auctioneer’s job is to sell the Lot at the highest price obtainable at the Auction to a Bidder. The Seller has authorised the Auctioneer to sell the Lot as its agent on its behalf and, save where we expressly make it clear to the contrary in writing, the Auctioneer acts only as agent for the Seller. The Auctioneer may from time to time act jointly with an associated Auctioneer who will be named in the Catalogue or in an Addendum.
2.2 As agents for each Seller we have authority to:
(a) prepare the Catalogue from information supplied by or on behalf of each Seller;
(b) offer each Lot for sale;
(c) sell each Lot;
(d) receive and hold Deposits;
(e) issue and collect proceeds against an invoice.
2.3 Our decision on the conduct of the Auction is final. We may cancel the Auction, or alter the order in which Lots are offered for sale. We may also combine or divide Lots. A Lot may be sold or withdrawn from sale prior to the Auction.
2.4 You acknowledge that to the extent permitted by law we owe you no duty of care and you have no claim against us for any loss.
2.5 The Auctioneer does not act for Buyers or Bidders and does not give advice to Buyers or Bidders.
2.6 When the Auctioneer or its staff make statements about a Lot or, if the Auctioneer provides a condition report on a Lot it is doing that on behalf of the Seller of the Lot. Bidders and Buyers who are themselves not expert in the Lots are strongly advised to seek and obtain independent advice on the Lots and their value before Bidding for them.
2.7 Any statement or representation we make in respect of a Lot is made on the Seller’s behalf and, unless the Auctioneer sells a Lot as principal, not on our behalf and any Contract is between the Buyer and the Seller and not with us. If the Auctioneer sells a Lot as principal this will either be stated in the Catalogue or an announcement to that effect will be made by the Auctioneer, or it will be stated in a notice at the Auction or an insert in the Catalogue. The Auctioneer does not owe or undertake or agree to any duty or responsibility to you in contract or tort (whether direct, collateral, express, implied or otherwise). If you successfully Bid for a Lot and buy it, at that stage the Auctioneer does enter into a contract (but not one of sale) with the Buyer - the terms of that contract are set out herewith.
2.8 We can cancel a sale of a Lot if: (i) any warranties given by you pursuant to these Terms and Conditions are not correct or become not correct; or (ii) we believe that completing the transaction is or may be unlawful; or (iii) we believe that the sale places or may place us or the Seller under any liability to anyone else or may damage our reputation.
3.1 Unless the Auctioneer has previously acknowledged in writing that the Bidder Bids as agent on behalf of a named principal, every Bidder shall be taken to Bid on his own behalf as principal.
3.2 Any Bidder acting as agent on behalf of a named principal shall remain liable to the Seller and the Auctioneer for all obligations and liabilities of his principal jointly and severally with the principal. The Bidder warrants that he has the authority of his principal to make each Bid made.
3.3 Every Bidder is required to give his name and address and provide satisfactory proof of identity, proof of address and such other information and documentation as is required to the Auctioneer before making any Bid and in the case of:
(a) a live Auction, by the completion of a registration form;
(b) an online Auction, by online registration at our website or third party websites;
(c) a private treaty or tender, by prior registration or notification of details, as and when requested by the Auctioneer.
3.4 The Auctioneers reserves the right at any time to reject the registration of any persons and refuse access to the Auction at its sole discretion. Failure to provide any required documents or information to our satisfaction may prevent you from becoming a Bidder.
3.5 On registration, Bidders will be added to the Auctioneer’s mailing list for the purposes of notification of future sales by email. If a Bidder wishes to stop receiving such notifications, they can unsubscribe at any time by clicking on the link provided at the bottom of each email.
3.6 The Bidder acknowledges that only adults aged 18 years and over are entitled to enter into a legally binding contract and as a result they are the only people entitled to register for the Auction. By registering the Bidder warrants that he is aged 18 years or older and is capable of forming a legally binding contract.
- Application of these Terms and Conditions
4.1 These Terms and Conditions apply to the sale of all Lots conducted by the Auctioneer. Bids cannot be made by a Bidder without agreement to these Terms and Conditions.
4.2 Bidding for any Lot shall be deemed to be an acceptance by the Bidder of these Terms and Conditions. The Catalogue is issued only on the basis that you accept these Terms and Conditions.
4.3 They govern our relationship with you and cannot be disapplied or varied by any other sale conditions (even by a condition purporting to replace the whole of these Terms and Conditions with yours). They can be varied only if we agree in writing.
- Bidding and Reserve Prices
5.1 All Bids are to be made in pounds sterling exclusive of any Buyer’s Premium, administration charges or VAT.
5.2 We may refuse to accept a Bid. We do not have to explain why.
5.3 If there is a dispute over Bidding, we are entitled to resolve it, and our decision is final.
5.4 Unless stated otherwise each Lot is subject to a reserve price (which may be fixed just before the Lot is offered for sale). If no Bid equals or exceeds that reserve price the Lot will be withdrawn from the Auction. The Seller is entitled to change the reserve price at any time before the conclusion of the Auction.
5.5 Where there is a reserve price the Seller may Bid (or ask us or another agent to Bid on the Seller's behalf) up to the reserve price but may not make a Bid equal to or exceeding the reserve price. You accept that it is possible that all Bids up to the reserve price are Bids made by or on behalf of the Seller.
5.6 Where a guide price (or range of prices) is given that guide is the minimum price at which, or range of prices within which, the Seller might be prepared to sell at the date of the guide price. But guide prices may change. The last published guide price will normally be at or above any reserve price, but not always – as the Seller may fix the final reserve price just before Bidding commences.
5.7 If you wish to Bid in person at the Auction, you must complete and sign a registration form stating that you agree to the Terms and Conditions. Copies of the Terms and Conditions are available at all Auctions. Once your registration is complete you will be given a paddle, carrying your personal number, for Bidding during the Auction.
5.8 If you wish to Bid by telephone, please complete and sign a registration form, which is available from our offices, in the Catalogue and on our website. Please then return it to the office responsible for the Auction at least 24 hours in advance of the Auction. If you would like to do this you will need to book yourself in as a telephone Bidder in advance of the Auction. Places are available on a first-come-first-served basis and may be subject to a minimum Lot value. It is your responsibility to check with our offices that your Bid has been received. Telephone calls may be recorded. The telephone Bidding facility is a discretionary service offered at no additional charge and may not be available in relation to all Lots. We will not be responsible for Bidding on your behalf if you are unavailable at the time of the Auction or if the telephone connection is interrupted during Bidding.
5.9 Please visit our website at www.proauction.ltd.uk for details of how to Bid online via the internet. The Auctioneer will not be liable for service delays, interruptions or other failures to make a Bid caused by losses of internet connection, fault or failure with the website or Bidding process, or malfunction of any software or system, computer or mobile device.
5.10 These Terms and Conditions shall apply to all Bids, including but not limited to Bids in person, Bids by telephone, Bids from our website, or from any third party websites.
5.11 Other types of Bidding might be possible with certain Lots, such as absent Bidding, where you place a maximum Bid, or appointing us as your representative to Bid – there may be additional terms and conditions for such Bids, which will be set out on our website, or in the Catalogue or in an Addendum.
- The Particulars and Other Information
6.1 We have taken reasonable care to prepare particulars that correctly describe each Lot. The particulars are based on information supplied by or on behalf of the Seller. You need to check that the information in the particulars is correct.
6.2 The particulars of the Lot and the sale conditions relating to the Lot may change prior to the Auction and it is your responsibility to check that you have the correct versions.
6.3 If we provide information, or a copy of a document, provided by others, we do so only on the basis that we are not responsible for the accuracy of that information or document.
- Successful Bid
7.1 A successful Bid is one we accept as such (normally on the fall of the hammer, but this is at the discretion of the Auctioneer).
7.2 The following conditions apply to you if you make the successful Bid for a Lot:
(a) You are obliged to buy the Lot on the terms of the sale at the price you Bid, plus the Buyer’s Premium and any applicable administration charges or other agreed charges (plus VAT on all of the aforementioned elements).
(b) Before leaving the Auction, you must:
(i) provide all information we reasonably need from you to enable us to complete the sale invoice (including proof of your identity);
(ii) pay the Deposit (if requested, a Deposit of up to 25% of the price).
(c) The Deposit:
(i) will be by held by us as a contracting party, or may be held by us as agent for the Seller, at our discretion; and
(ii) must be paid in pounds sterling by cash or by bankers' draft made payable to us by a financial institution we approve in writing.
(d) If the Buyer does not comply with its obligations under the Contract then:
(i) you are personally liable to buy the Lot even if you are acting as an agent; and
(ii) you must indemnify us and the Seller in respect of any loss we or the Seller incurs as a result of the Buyer's default.
(e) Where the Buyer is a company you warrant that the Buyer is properly constituted and able to buy the Lot.
- Buyer’s Premium, Taxes and Artist’s Resale Right
8.1 In addition to the hammer price, the successful Bidder agrees to pay us a Buyer’s Premium on the hammer price of each Lot sold. On all Lots we charge 22% of the hammer price (plus VAT).
8.2 VAT will be added to the Buyer’s Premium and is payable by you.
8.3 The prevailing rate of VAT is currently 20%, but this is subject to government change and the rate payable will be the rate in force on the date of the Auction.
8.4 All overseas Buyers will be charged VAT at the current rate on each Lot purchased. VAT refunds depend on the particular circumstances of the Buyer. It is the Buyer’s responsibility to apply for these if they require them. The Seller is unable to refund the VAT on the Buyer’s Premium.
8.5 All Lots are sold Ex Works (EXW) from the collection address stated on the invoice and/or the collection instructions.
8.6 Neither the Auctioneer or the Seller are responsible for any VAT, duties, goods and services tax, or other sales or import taxes or duties arising on the exportation of the goods from the UK and/or the importation of the goods into any country. Buyers are responsible for the payment of any export or import duties or tariffs that may apply. All overseas Buyers are advised to engage the services of a freight forwarding agent, who should arrange and effect the appropriate export documentation.
8.7 In certain countries, local laws entitle the artist or the artist’s estate to a royalty known as the ‘Artist’s Resale Right’ when any Lot created by the artist is sold. If these laws apply to a Lot, you must pay us an extra amount equal to the royalty. We will pay the royalty to the appropriate authority on the Seller’s behalf. All of the following relating to the Artist’s Resale Right is subject to changes in the law. The actual law at the time of the Auction will apply in substitution to the terms set out below.
8.8 The Artist’s Resale Right applies if the hammer price of the Lot is 1,000 euros or more. Royalties are calculated on the hammer price, excluding VAT. The maximum to be paid is capped at 12,500 euros, for one Lot.
8.9 Please note that the below scale is cumulative, which means that where the sale price is higher than the first threshold, the royalty on each portion of the price must be calculated accordingly and added together to arrive at the final sum. As the threshold is given in euros, we use the exchange rate on the date of the sale of the Lot to work out the threshold and the amounts to be paid in sterling (using the rate which we shall determine using online exchange rates).
8.10 We work out the amount owed as follows, in relation to the hammer price (in euros), subject to the cap:
(a) 4% up to 50,000;
(b) 3% between 50,000.01 and 200,000;
(c) 1% between 200,000.01 and 350,000;
(d) 0.50% between 350,000.01 and 500,000;
(e) 0.25% over 500,000.
9.1 Immediately following the Auction, you must pay the purchase price being:
(a) the hammer price; and
(b) the Buyer’s Premium; and
(c) any amounts due for additional charges such as lift out charges or Artist Resale Rights; and
(d) any duties, tariffs, taxes or similar charges and VAT.
9.2 Unless agreed otherwise in writing with the Auctioneer, payment is due no later 24 hours following the date of the Auction, or no later than the following day after we issue you with an invoice, as the case may be (the due date).
9.3 We will only accept payment from the registered Bidder. Once issued, we cannot change the Buyer’s name on an invoice or re-issue the invoice in a different name. You must pay immediately even if you want to export the Lot and you need an export licence or need to make shipping arrangements.
9.4 You must pay for Lots bought at the Auction in the UK in the currency stated on the invoice in one of the following ways:
(a) The Auctioneer’s preferred payment method is by bank transfer.
(b) You may electronically transfer funds to our account. If you do so, please quote your paddle number and invoice number as the reference. Our account details are as follows:
Barclays Bank Plc
Account Name: Pro Auction Limited
Account Number: 80193151
Sort code: 20-05-12
The IBAN for this account is: GB02 BUKB 20051280193151
SWIFT Code: BUKBGB22
(c) If paying by bank transfer, the amount received after the deduction of any bank fees and/or conversion of the currency to pounds sterling, must not be less than the sterling amount payable, as set out on the invoice.
9.5 Payment may also be made by one of the following methods:
(a) Cash with a limit of £7,500.00;
(b) Visa and Mastercard debit or credit card.
9.6 If the Buyer fails to make any payment on the due date for payment then, without limiting any other right or remedy available to the Seller, the Buyer shall pay to the Auctioneer interest (both before and after any judgment) on the amount unpaid at the rate of 8% above the bank base rate of the Bank of England per month or any part thereof until payment in full is made.
9.7 Until the Buyer has fully complied with its obligations in relation to payment:
(a) title to any Lot bought shall not pass to the Buyer;
(b) the Seller shall have a lien over any Lot bought by the Buyer in any Auction;
(c) if the Buyer effects or purports to effect a resale or any other disposition of all or part of the Lot, the Buyer shall hold the proceeds of resale or other disposition on trust for the Seller.
9.8 If the Buyer purchased via online Bidding, the Auctioneer is entitled to take payment from the registered payment card attached to the Buyer’s registration at the time of the Auction, without notice to the Buyer.
- Failure to Pay
10.1 If the Purchase Price for a Lot is not paid to the Auctioneer in full in accordance with the Contract, the Seller will be entitled, with the prior written agreement of the Auctioneer but without further notice to you, to exercise one or more of the following rights (whether through the Auctioneer or otherwise):
(a) to terminate immediately the Contract for your breach of contract;
(b) to resell the Lot by Auction, private treaty or any other means on giving three days’ written notice to you of the intention to resell;
(c) to retain possession of the Lot;
(d) to remove and store the Lot at your expense;
(e) to take legal proceedings against you for any sum due under the Contract and/or damages for breach of contract;
(f) to be paid interest on any monies due (after as well as before judgement or order) at the monthly rate of 8% per annum above the base rate of the Bank of England from time to time to be calculated on a daily basis from the date upon which such monies become payable until the date of actual payment;
(g) to repossess the Lot (or any part thereof) which has not become your property, and for this purpose (unless the Buyer buys the Lot as a consumer from the Seller selling in the course of a business) you hereby grant an irrevocable licence to the Seller by himself and to his servants or agents to enter upon all or any of your premises (with or without vehicles) during normal business hours to take possession of the Lot or part thereof;
(h) to retain possession of any other property sold to you by the Seller at any Auction or by private treaty until all sums due under the Contract shall have been paid in full in cleared funds;
(i) to retain possession of, and on one months’ written notice to sell, without reserve, any of your other property in the possession of the Seller and/or of the Auctioneer (as bailee for the Seller) for any purpose (including, without limitation, other goods sold to you) and to apply any monies due to you as a result of such sale in satisfaction or part satisfaction of any amounts owed to the Seller or to the Auctioneer; and
(j) so long as such goods remain in the possession of the Seller or the Auctioneer as its bailee, to rescind the contract of sale of any other goods sold to you by the Seller at any Auction or by private treaty and apply any monies received from you in respect of such goods in part or full satisfaction of any amounts owed to the Seller or to the Auctioneer by you.
10.2 You agree to indemnify the Seller against all legal and other costs of enforcement, all losses and other expenses and costs (including any monies payable to the Auctioneer in order to obtain the release of the Lot) incurred by the Seller (whether or not court proceedings will have been issued) as a result of the Auctioneer taking steps under this clause 10 on a full indemnity basis together with interest thereon (after as well as before judgement or order) at the rate specified in clause 9 from the date upon which the Seller becomes liable to pay the same until payment by you.
10.3 On any resale of the Lot under this clause 10, the Seller will account to you in respect of any balance remaining from any monies received by him or on his behalf in respect of the Lot, after the payment of all sums due to the Seller and to the Auctioneer, within 28 days of receipt of such monies by him or on his behalf.
- The Lot
11.1 Our description of any Lot in the Catalogue, any condition report and any other statement made by us (whether verbally or in writing) about any Lot, including about its nature or condition, artist or other creator, period, materials, approximate dimensions or provenance are our opinion and not to be relied upon as a statement of fact. We do not carry out in-depth research of the sort carried out by professional historians and scholars. All dimensions and weights are approximate only.
11.2 The Lot (including any rights to be granted or reserved, and any exclusions from it) is described in the Catalogue or an Addendum.
11.3 The Lot is also sold subject to the other conditions of this clause 11 as may affect it, whether they arise before or after the Contract date and whether or not they are disclosed by the Seller or are apparent from inspection of the Lot.
11.4 Where anything subject to which the Lot is sold would expose the Seller to liability the Buyer is to comply with it and indemnify the Seller against that liability.
11.5 The Lot comprises of the item in the Catalogue only. All items in, under, over and around any Lot in this Catalogue are not included with such Lot unless specifically stated in the Catalogue description.
11.6 The Lot does not include any tenant's or trade fixtures or fittings.
11.7 A photograph or illustration may not reflect an accurate reproduction of the colour(s) or true condition of the Lot and images are provided for guidance of style only.
11.8 Dimensions shown are approximate and for guidance only, please ask in advance of the Auction if you require exact dimensions as part of a condition report.
11.9 Lots are available for inspection prior to the Auction and it is for you to satisfy yourself as to each and every aspect of a Lot (including conducting your own due diligence and research into the Lot), including its authorship, attribution, condition, provenance, history, background, authenticity, style, period, age, suitability, quality, roadworthiness (if relevant), origin, value and estimated selling price.
11.10 It is your responsibility to examine any Lot in which you are interested. It should be remembered that the actual condition of a Lot may not be as good as that indicated by its outward appearance.
11.11 In particular, parts may have been replaced or renewed and Lots may not be authentic or of satisfactory quality; the inside of a Lot may not be visible and may not be original or may be damaged, as for example where it is covered by upholstery or material.
11.12 Given the age of many Lots they may have been damaged and/or repaired and you should not assume that a Lot is in good condition.
11.13 Electronic or mechanical items or parts are sold for their artistic, historic or cultural interest and may not operate or may not comply with current statutory requirements. You should not assume that electrical items designed to operate on mains electricity will be suitable for connection to the mains electricity supply and you should obtain a report from a qualified electrician on their status before doing so. Such items which are unsuitable for connection are sold as items of interest for display purposes only.
11.14 If you yourself do not have expertise regarding a Lot, you should consult someone who does to advise you. We can assist in arranging facilities for you to carry out or have carried out more detailed inspections and tests. Please ask our staff for details. Any person who damages a Lot will be held liable for the loss caused.
11.15 Every Lot is sold as seen and where lying. No warranties are given regarding the condition of any Lot.
11.16 No Lot is sold as compromising or including any new goods.
11.17 All items of post-1950 furniture included in the Auction are items either not originally supplied for use in a private home or sold as collector’s items. These items may not comply with the provisions of the Furniture and Furnishings (Fire) (Safety) Regulations 1988 or any similar legislation (the Regulations). Accordingly, these items should not be used as furniture in your home in their current condition. If you do intend to use such items for this purpose, you must first ensure that they are reupholstered, restuffed and/or recovered (as appropriate) in order that they comply with the provisions of the Regulations.
11.18 Misrepresentation: Whilst every effort has been made to provide reliable information, the Auctioneer do not warrant the information contained herein and Bidders and Buyers must satisfy themselves by inspection as to its correctness.
11.19 The Buyer further acknowledges that:
(a) neither the Seller nor the Auctioneer shall in any circumstances be liable to or to compensate the Buyer nor shall the Buyer be entitled to rescind the sale or reject any Lot for an error omission or misstatement contained in the Catalogue and/or in any Addendum;
(b) all the Lots are purchased on the basis that risk of good title to all or any of them passing to the Buyer is at the Buyer’s risk and without limitation the Lots are sold subject to any claims, liens, distraint and execution and subject to all leasing, hire or hire purchase agreements and reservation of title claims (if any) in respect of them;
(c) if it shall be found that the Seller does not have title to all or any of the Lot the Buyer shall have no right to rescind, avoid or vary a contract subject to these Terms and Conditions or to claim damages or a reduction in the price paid or payable;
(d) any intellectual property rights or software subsisting in a Lot may be third party property and as such the Seller and/or the Auctioneer may be unable to effect transfer. The Buyer will not be authorised to use intellectual property rights or software and any such use or transfer shall be at the Buyer’s sole risk. The Auctioneer or the Seller reserve the right to erase any private or sensitive information prior to the Auction or at any later date;
(e) any item of plant, machinery or equipment contained in a Lot may not necessarily comply with any statutory requirements or regulations governing the use of that plant, machinery or equipment in their working environment. Neither the Seller nor the Auctioneer shall incur any liability to the Buyer because of any default or defect in all or any of the Lots. The Buyer is entirely responsible for ensuring that the use of any item of plant, machinery or equipment does not contravene any health and safety and environmental legislation in existence at the time of the Auction;
(f) the Auctioneer is acting only as agent of the Seller and it is expressly agreed and declared that no personal liability in connection with the sale of any Lot or otherwise shall fall on the Auctioneer and the Buyer shall indemnify the Auctioneer against all and any liabilities arising under or in connection with the sale of any Lot. All Practitioners (including but not limited to administrative receivers, administrator and lquidators) act as agent(s) for the Seller without personal liability and shall incur no personal liability whatsoever in relation to a sale or pursuant to any document relating thereto.
11.20 The Buyer agrees that the conditions herein and the exclusions which they contain are fair and reasonable bearing in mind that:-
(a) the Buyer must rely absolutely on the Buyer's own opinion and/or professional advice concerning the quality, state, condition, performance and functionality of the Lot, any right, title or interest which is sold under the terms of these Terms and Conditions, their fitness and suitability for any particular or any purpose, the possibility that some or all of them may have defects not apparent on inspection and examination including, without limitation, the presence of contamination and the possibility that the Buyer may not acquire title and the fact that the Buyer would have no remedy under a contract subject to these Terms and Conditions should that happen;
(b) the Buyer has available to it skilled professional advice and on that basis agrees to purchase a Lot for a consideration calculated to take into account amongst other things the risk to it represented by the fact that the parties believe that all the exclusions and limitations set out in these Terms and Conditions would be recognized as being fully effective by the courts and the Seller making it clear that it would not have agreed to sell any Lot on any other basis except for a higher consideration;
(c) the Buyer has been given every opportunity which might reasonably be expected to examine and inspect the Lot.
- Removal of Lots
12.1 The ownership of the Lot purchased shall not pass to the Buyer until he has made payment in full to the Auctioneer of the total purchase price (referred to in clause 9), but each Lot is at the sole risk of the Buyer from the fall of the hammer.
12.2 The removal of Lots from the Auction venue or the place where the Lot is held shall be undertaken by the Buyer entirely at its own risk and without any liability whatsoever to the Seller or Auctioneer.
12.3 Buyers are responsible for any and all costs and expenses incurred in relation to the removal of Lots and any other applicable charges, taxes and insurance costs.
12.4 The Buyer may not remove any Lot until the Buyer has:-
(a) paid by cleared funds all amounts payable pursuant to these Terms and Conditions;
(b) if requested by the Auctioneer and/or the Seller, he has produced satisfactory evidence to the Auctioneer that the Buyer has adequate public liability insurance in respect of the indemnities set out in these Terms and Conditions and/or deposited with the Auctioneer, by way of security, for the costs of making good any damage likely to occur, such sum as the Auctioneer may stipulate.
12.5 The Buyer must remove each Lot purchased by the Clearance Date and Time, for which time shall be of the essence. Lots may only be removed during normal working hours or such hours as are specified in any Addendum. Collections can only take place on a Business Day and we reserve the right to additionally close on days other than Business Days.
12.6 Buyers should co-operate regarding the order of removal of Lots in order to comply with the Clearance Date and Time. If it transpires that a Buyer makes no effort to commence dismantling and the particular Lot is preventing other buyers from removing purchased Lots, then the Auctioneer reserves the right to insist that removal take place immediately notwithstanding the specified Clearance Date and Time. In the event the Buyer does not comply with its obligations herein, then the Auctioneer reserves the right to arrange for the removal and/or storage of the Lot and charge any related costs to the Buyer.
12.7 If any Lot is unsold and has to be dismantled & lowered to allow the removal of the Buyer’s Lot, then such dismantling & lowering shall be the responsibility of the Buyer.
12.8 The Buyer and/or his removal contractor must liaise with the Auctioneer's site representative prior to commencing dismantling/removal of a Lot and must at all times comply with its obligations under this clause 12.
12.9 When removing any Lot from the Auction venue or the place where the Lot is held, the Buyer shall, or shall procure that its removal contractors shall:
(a) carry out a full assessment of the Lot, the location where it is held and the land or buildings to which the Lot is fixed, to assess the risks associated with detaching/removing the Lot and shall fully satisfy themselves that they can detach/remove the Lot in compliance with the Buyer’s obligations;
(b) obtain all relevant planning permissions (where required) in relation to the removal of building structures;
(c) make good holes or voids exposed by the removal of Lots. Cladding taken off buildings for removal of plant & equipment will have to be replaced, unless otherwise specified in writing by the Auctioneer;
(d) when detaching any Lot fixed to land or buildings, do so safely and lawfully and must not use flame cutters, explosives or any other dangerous equipment or process without first obtaining written consent of the Auctioneer;
(e) remove the Lot in compliance with all relevant legislation, regulations, codes of practice, guidance, orders, rules and other requirements of any relevant government or governmental agency or authority whether Parliamentary, statutory, parochial or local including (without limitation) in compliance with the Health and Safety at Work etc Act 1974, the Environmental Protection Act 1990, The Construction (Design and Management) Regulations 2007, Control of Substances Hazardous to Health Regulations 2002 (COSHH), and the Road Vehicle (Construction and Use) Regulations 1986 and any subsequent amendments or replacement thereof and all other health and safety and environmental legislation in existence at the time of the Auction.
12.10 To the extent that such regulations are advisory rather than mandatory, the standard of compliance to be achieved by the Buyer shall be to the best industry practice. In all cases arising under this clause 12, the costs of compliance shall be borne by the Buyer and the Buyer hereby indemnifies the Auctioneer and the Seller against all losses, costs, expenses, damages, liabilities, demands, claims, actions and proceedings which the Auctioneer and/or the Seller may incur arising directly or indirectly out of any breach by the Buyer to the provisions of these conditions and the Buyer shall make good any damage caused to (without limitation) other lots, the location where the Lot is held or to any property belonging to third parties, in removing any Lot.
12.11 The Auctioneer shall be entitled to halt the clearance of any Lot if in its absolute discretion the removal of a Lot is being carried out in an unsatisfactory manner. Where the clearance is halted by the Auctioneer, the Buyer must liaise with the Auctioneer site representative as to how the Lot should be removed from the location where it is held provided that the Buyer shall at all times ensure that it complies with its obligations under this clause 12 and the Seller nor the Auctioneer shall have any liability in this regard.
12.12 The Buyer shall provide evidence as and when requested by the Auctioneer of the Buyer's insurance policies in respect of the following insurances and at a minimum level of: Public Liability Cover – at least £2,000,000; and Employers Liability Cover – at least £10,000,000; the Auctioneer reserves the right to vary the level of insurance cover stated above at any time, as and when required.
12.13 The Buyer shall provide to the Auctioneer a Risk Assessment & Method Statement complying with the Construction (Design & Management) Regulations 2007, COSHH or with any subsequent amendments thereof or such other legislation as shall from time to time be in force.
12.14 Electric, gas, water, steam and waste disconnections are the responsibility of the Buyer and must be carried out by an approved contractor following consultation with the site representative.
12.15 It is expressly brought to the Buyer's attention that certain Lots could contain blue or white asbestos, dangerous chemicals etc. which if not handled correctly during their removal could result in breach of Health & Safety at Work legislation and/or Control of Substances Hazardous to Health Regulations or other statutory requirements.
12.16 Any fluids, gases and/or waste remaining in plant and machinery are the responsibility of the Buyer and must be removed from the location where the Lot is held strictly in accordance with any applicable statutory requirements.
12.17 The Buyer must use safe and lawful means of removing the Lot, must comply with all current statutory requirements and regulations including those relating to the disposal and removal of waste, and if required, satisfy the Auctioneer in relation to their removal procedures; in particular, the removal of waste materials must be undertaken by an approved and licensed contractor to an approved waste management site.
12.18 The Buyer shall indemnify the Auctioneer and the Seller against any loss, damages, expenses, claims or liabilities arising directly or indirectly from the possession or use of the Lot from the time that risk passes to the Buyer but before it is removed from the location where it is held.
12.19 The Buyer undertakes to comply with the provisions of the Data Protection Laws in processing data held by them in connection with any Lot.
12.20 If you do not collect any Lot within fourteen days following the Auction we can, at our option: (i) charge you storage costs at the rate of £25 plus VAT per Lot per day (the Auctioneer reserves the right to vary the storage costs at any time, as and when required); (ii) move the Lot to another Auctioneer location or an affiliate or third party warehouse and charge you transport costs and administration fees for doing so and you will be subject to the third party storage warehouse’s standard terms and to pay for their standard fees and costs; and (iii) sell the Lot in any commercially reasonable way we think appropriate.
12.21 Lots are sold as is, where is and are to be collected from the location specified in the sale particulars / collection instructions.
12.22 We may enclose collection instructions with each invoice sent to you. You must make all arrangements to pack, protect, transport and ship the Lot at your own expense. In relation to certain sales, we can arrange to pack, transport and ship your property if you ask us to and pay the costs of doing so.
12.23 We recommend that you ask us for an estimate, especially for any large items or items of high value that need professional packing before you Bid. We may also suggest other handlers, packers, transporters or experts if you ask us to do so. We will take reasonable care when we are handling, packing, transporting and shipping a Lot. However, if we recommend another company for any of these purposes, we are not responsible for their acts, failure to act or neglect.
- Conduct of Auctions
13.1 Any Lot may be subject to a minimum Bid or reserve price. The Auctioneer or the Seller is entitled to change these at any time before the conclusion of the Auction.
13.2 The Seller, Auctioneer or any representative, agent or person acting on behalf of the Seller may Bid for any Lot. Persons entitled to Bid pursuant to this condition shall be entitled to place Bids on any Lot up to the reserve price including by placing Bids in response to other Bidders.
13.3 Lot descriptions will be amended as appropriate as and when information becomes available to the Auctioneer. Prospective Bidders must read Lot descriptions before making a Bid so that they are fully aware of any amendments to the description appearing in any Addendum and/or on our website or in the Catalogue in relation to a particular Lot.
13.4 The Auctioneer may at any time before the conclusion of the Auction withdraw or divide any Lot or combine any Lot or sell any Lot by private treaty or tender before, during or after the Auction.
13.5 The Auctioneer may reject any Bid at his sole discretion and without being required to give a reason.
13.6 No Bid shall be retracted without the consent of the Auctioneer.
13.7 The Auctioneer may where there is a dispute of any nature at the Auction or regarding a Bid, summarily determine the dispute or immediately again offer the Lot for sale, in each case without being required to give a reason.
13.8 The Auctioneer shall in every other respect decide how the Auction is to be conducted and without being required to give a reason.
13.9 A sale of a Lot is concluded (constituting acceptance of the Bidder's offer) when:
(a) in the case of a live Auction, on the fall of the Auctioneers hammer;
(b) in the case of an online Auction, at the close of the timed online Auction sale as specified on our website;
(c) in the case of a private treaty or tender, when the Bidder’s Bid is accepted by the Auctioneer, such acceptance to be communicated to the Bidder in writing or by the issue of an invoice to the Buyer.
13.10 The Buyer shall be the person who made the highest Bid before the conclusion of the sale of the Lot subject to approval and acceptance by the Auctioneer and the Seller or such other Bidder as the Auctioneer may declare to be the Buyer without being required to give a reason. The Auctioneer and/or the Seller is not bound to accept the highest Bid or any other Bid placed in the course of the Auction.
13.11 In the case of an online Auction, the Buyer shall within a reasonable time after the conclusion of the Auction receive by email an invoice in respect of the monies due for the Lot(s) purchased.
13.12 In the event that the reserve price is not met, the Auctioneer may consider the Bids received below the reserve price with the Seller who at its sole discretion may accept, reject or place a counteroffer.
13.13 On conclusion of the sale of the Lot and acceptance of the Bidder’s Bid, the Buyer acknowledges and agrees that he has entered into a contract with the Seller to buy the Lot and the Buyer must complete the transaction to purchase the Lot.
13.14 The Buyer may not remove any Lot he has bought until after the end of the Auction.
13.15 In relation to an online Auction:
(a) the Auctioneer cannot guarantee that the internet services will operate continuously or without interruptions and this could affect the conduct of the online Auction and the Bidder’s ability to Bid online. The Auctioneer shall not be liable in any respect in the event of any dispute due to errors, omissions or disruptions to internet services or power failures or any other unforeseen circumstances which may occur during the online Auction;
(b) the Auctioneer may at any time, without notice, postpone or cancel an online Auction or extend an online Auction beyond the published closing time (including extension of the timed online Auction in accordance with these Terms and Conditions);
(c) the timed online Auction sale is ‘auto Bid extension enabled’ meaning that where a Bid is placed within ten minutes of the original scheduled close of the timed online Auction, the scheduled close of the timed online Auction will automatically be extended by an additional ten minutes. This continues with a new scheduled close time each time a Bid is placed until no-one places a Bid before the last scheduled close of the timed online Auction. Such time shall then be deemed to be the close of the timed online Auction.
13.16 In the event that the Auctioneer unknowingly sells a Lot that was not eligible for sale (i.e. there is a third party interest that comes to light) then the Auctioneer shall be entitled to immediately rescind that sale without any further liability to the Auctioneer or the Seller.
13.17 Copies of the Auctions (Bidding Agreements) Act 1927 and 1969 are held at the Auction or copies can be requested of the Auctioneer in the case of an online Auction.
- Acknowledgments and Exclusions of Warranties
14.1 The Buyer acknowledges that in agreeing to purchase any Lot he is not relying on any warranties or representations made by the Seller or the Auctioneer or any of their employees, agents or representatives. All representations, warranties and conditions, express or implied, statutory or otherwise in respect of all and any of the Lots are expressly excluded and without limitation any warranties and conditions as to title, quiet possession, satisfactory quality, fitness for purpose and description of any kind are excluded to the fullest extent as permitted by law – we shall owe you no duty, liability or obligation in relation to these.
14.2 The Buyer acknowledges that neither the Seller nor the Auctioneer shall in any circumstances be liable to compensate the Buyer nor shall the Buyer be entitled to rescind the sale or reject any Lot for an error, omission or misstatement contained in the Catalogue and/or in any Addendum (including photographic images or website entries).
14.3 The Buyer acknowledges that:-
(a) anything found in, under, near or in any Lot which is not specifically included in the description of the Lot remains the property of the Seller;
(b) the Buyer undertakes that it shall ensure that any vehicle comprised in any Lot is in a roadworthy condition in accordance with the Road Vehicle (Construction and Use) Regulations 1986 and any subsequent amendments or replacements or such other relevant regulations as shall from time to time be in force before using it on a public road. It is the Buyer's responsibility to remove any logos and lettering from vehicles. Odometer readings are not warranted;
(c) the Lot may be inspected at the times and place set out in the Catalogue. The Buyer (whether or not he inspects the Lot which he purchases) shall be deemed to buy with notice of all defects in the Lot.
14.4 The Buyer acknowledges that any item of plant, machinery or equipment contained in the Lot(s) may not necessarily comply with any statutory requirements or regulations governing the use of that plant, machinery or equipment in their working environment. Neither the Seller nor the Auctioneer shall incur any liability to the Buyer because of any default or defect in all or any of the Lots. Buyers are entirely responsible for ensuring that the use of any item of plant, machinery or equipment does not contravene any health and safety and environmental legislation in existence at the time of the Auction.
14.5 The Buyer acknowledges and agrees that the Auctioneer does not represent any Lot as being in a condition which makes it suitable for domestic use.
14.6 The Buyer acknowledges that a sale by Auction is not a consumer sale for the purposes of the Sale of Goods Act 1979, the Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015 and the Buyer shall not seek to rely upon any conditions or warranties implied thereby or by any other legislation. Lots are sold to the Buyer on an “as is” basis, with all faults and imperfections. Illustrations and photographs contained in the Catalogue or elsewhere of any Lots are for identification purposes only.
14.7 If the Consumer Rights Act 2015 applies to the sale (only in the case of Lots which contain only new products and/or where an Auction is not an Auction that any person can attend in person) or the Sale of Goods Act 1979 applies to the sale, as the agent of the Seller, we may on the request of the Buyer pass on any details of any alleged issues with the Lot purchased, the Buyer’s request for a repair, replacement or refund and deal with the request as legally appropriate as agent of the Seller, or we may at our discretion pass all such requests to the Seller. As the Contract is between the Buyer and the Seller, we have no duty or obligation to the Buyer relating to this and any action taken shall only be taken as a courtesy to the Buyer.
- Liability and Indemnities
15.1 The Auctioneer warrants that he believes that the Seller of each Lot is able to pass good title, and if the Seller is not able to do so, the Auctioneer shall use his reasonable endeavours to assist the Buyer in obtaining good title and in pursuing any remedies the Buyer might have against the Seller, but the Auctioneer shall not be bound to initiate litigation and shall not be under any other obligation to the Buyer.
15.2 The Auctioneer neither has nor professes any expert or other knowledge of any Lot sold and is hereby excluded any liability the Auctioneer might otherwise incur and any right or immunity the Buyer might otherwise possess in respect of any conditions warranties or representations relating to the condition of any Lot sold or the merchantable quality of the Lot or its fitness for the particular or any purpose for which it is or may be required whether such conditions warranties or representations are expressed or implied in the Catalogue or are the subject of verbal or written statements made by or on behalf of the Auctioneer or any other person before or in the course of the Auction.
15.3 No liability shall attach to the Auctioneer either in contract or in tort for loss, injury or damage, legal or other expenses sustained by any Bidder, the Buyer or any other person by reason of:-
(a) any defect in any Lot sold, whether or not such defect be latent or apparent on examination;
(b) any defect or danger of the premises where the Auction is held;
(c) any alleged failure of the Auctioneer to properly advertise the Auction or to seek or obtain expert legal advice with regard to any Lot offered for sale or its reserve price;
(d) any act or omission of the Auctioneer in the conduct of the Auction or after the Auction;
(e) any act or omission of any person other than the Auctioneer.
15.4 The Auctioneer shall not be liable to indemnify any Bidder or the Buyer in respect of any claims made by a third party for any loss injury damage or legal or other expenses referred to in this clause 15.
15.5 In no circumstances shall the Auctioneer be liable to any Bidder or the Buyer for any consequential, special or indirect damage, loss of profits, loss of goodwill, loss of chance or loss of anticipated savings.
- Force Majeure
16.1 The Auctioneer shall not be liable to any Bidder or the Buyer for any failure or delay in performing its obligations where such failure or delay results from any cause that is beyond its reasonable control. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, epidemics, acts of terrorism, acts of war, governmental action or any other similar or dissimilar event or circumstance that is beyond the control of the Auctioneer.
17.2 We may videotape and record proceedings at any Auction. We will keep any personal information confidential, except to the extent disclosure is required by law or consent. However, we may, through this process, use or share these recordings with another company and marketing partners to analyse our customers and to help us to tailor our services for a Buyer and you hereby consent to the same. If you do not want to be videotaped, you may make arrangements to make a telephone or written Bid or Bid online instead. Unless we agree otherwise in writing, you may not videotape or record proceedings or audio at any Auction.
17.3 You may not grant a security over or transfer your rights or responsibilities under a contract subject to these Terms and Conditions unless we have given our written permission.
17.4 The Auctioneer may assign or subcontract any or all of its rights and obligations under a contract subject to these Terms and Conditions without consent.
17.5 This Terms and Conditions (unless expressly stated elsewhere in the Terms and Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.
17.6 No variation of a contract subject to these Terms and Conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.7 No failure or delay by a party to exercise any right or remedy provided under a contract subject to these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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. A waiver of any right or remedy under a contract subject to these Terms and Conditions or by law is only effective if it is in writing.
17.8 Any notice required to be given pursuant to these Terms and Conditions shall be deemed duly served if given by email to the normal email address used by that person. In proving the giving of a notice, it shall be sufficient to prove that the email was sent on the sender’s email account. References to writing and giving consent in writing in these Terms and Conditions shall include email.
17.9 If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms and Conditions.
17.10 These Terms and Conditions do not create a partnership, joint venture, agency, representative, employment or fiduciary relationship between the parties.
17.11 These Terms and Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of a contract subject to these Terms and Conditions (save for the Seller, if we grant the Seller such a right).
17.12 We own the copyright in all images, illustrations and written material produced by or for us relating to a Lot (including the contents of our Catalogues unless otherwise noted in the Catalogue). You cannot use them without our prior written permission. We do not offer any guarantee that you will gain any copyright or other reproduction rights to the Lot.
17.13 All transactions to which these Terms and Conditions apply and all connected matters will be governed by and construed in accordance with the laws of that part of the United Kingdom where the Auction takes (or is to take) place and we and you each submit to the exclusive jurisdiction of the courts of that part of the United Kingdom, save that we may bring proceedings against you in any other court of competent jurisdiction to the extent permitted by the laws of the relevant jurisdiction.
Unit 5, Midsomer Enterprise Park, Radstock Road, Bath, BA3 2BB United Kingdom
Tel: +44(0)1761 414000 Fax: +44(0)845 280 2492 Email: info@proauction.Itd.uk Website: www.proauction.ltd.uk
Company Registration no: 5059610