Conditions of Business for Buyers
CONDITIONS OF BUSINESS FOR BUYERS
1. INTRODUCTION
(a) Ingles & Hayday Ltd and the Seller's contractual relationship with prospective Buyers is governed by:
(i) these Conditions of Business;
(ii) the Conditions of Business for Sellers which are available upon request from Ingles & Hayday Ltd;
(iii) Ingles & Hayday Ltd Authenticity Guarantee as printed in the sale catalogue;
(iv) any additional notices and terms printed in the sale catalogue, and as amended by any saleroom notice or auctioneer's announcement at the auction.
(b) As auctioneer, Ingles & Hayday Ltd acts as agent for the Seller. A sale contract is made directly between the Seller and the Buyer. However, Ingles & Hayday Ltd may own a lot (and in such circumstances acts in a principal capacity as Seller) and/or may have a legal, beneficial or financial interest in a lot as a secured creditor or otherwise.
2. COMMON TERMS IN THESE CONDITIONS OF BUSINESS:
"Bidder" is any person considering, making or attempting to make a bid, by whatever means, and includes Buyers.
"Buyer" is the person who makes the highest bid or whose offer is accepted by the auctioneer, and includes such person's principal when bidding as agent.
"Buyer's Expenses" are any costs or expenses due to Ingles & Hayday Ltd from the Buyer in respect of the sale of the Property, including an amount in respect of any applicable VAT thereon.
"Buyer's Premium" is the commission payable by the Buyer on the Hammer Price at the rates set out in 'Useful Information for Buying at Auction';
"Counterfeit" is as defined in Ingles & Hayday Ltd Authenticity Guarantee.
"Hammer Price" is the highest bid accepted by the auctioneer by the fall of the hammer, or in the case of a post-auction sale, the agreed sale price.
"Ingles & Hayday" means Ingles & Hayday Ltd, the Limited Company which has its registered office at 94-96 Wigmore Street, London W1U 3RF.
"Purchase Price" is the Hammer Price and applicable Buyer's Premium and VAT.
"Reserve" is the (confidential) minimum Hammer Price at which the Seller has agreed to sell a lot.
"Seller" is the person offering a lot for sale (including their agent, other than Ingles & Hayday), executors or personal representatives.
"VAT" is Value Added Tax at the prevailing rate. Further information is contained in 'Useful Information for Buying at Auction'.
3. DUTIES OF BIDDERS AND OF INGLES & HAYDAY LTD IN RESPECT OF ITEMS FOR SALE
(a) Ingles & Hayday's knowledge in relation to each lot is partially dependent on information provided to it by the Seller, and Ingles & Hayday is not able to and does not carry out exhaustive due diligence on each lot. Bidders acknowledge this fact and accept responsibility for carrying out inspections and investigations to satisfy themselves as to the lots in which they may be interested.
(b) Each lot offered for sale at Ingles & Hayday is available for inspection by Bidders prior to the sale. Ingles & Hayday accepts bids on lots solely on the basis that Bidders (and independent experts on their behalf, to the extent appropriate given the nature and value of the lot and the Bidder's own expertise) have fully inspected the lot prior to bidding and have satisfied themselves as to both the condition of the lot and the accuracy of its description.
(c) Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All lots are offered for sale in the condition they are in at the time of the auction (whether or not Bidders are in attendance at the auction). Condition reports may be available to assist when inspecting lots. Catalogue descriptions and condition reports may on occasions make reference to particular imperfections of a lot, but Bidders should note that lots may have other faults not expressly referred to in the catalogue or condition report. Illustrations are for identification purposes only and will not convey full information as to the actual condition of lots.
(d) Information provided to Bidders in respect of any lot, including any estimate, whether written or oral and including information in any catalogue, condition or other report, commentary or valuation, is not a representation of fact but rather is a statement of opinion genuinely held by Ingles & Hayday. Any estimate may not be relied on as a prediction of the selling price or value of the lot and may be revised from time to time in Ingles & Hayday's absolute discretion.
(e) No representations or warranties are made by Ingles & Hayday or the Seller as to whether any lot is subject to copyright or whether the Buyer acquires copyright in any lot.
(f) Subject to the matters referred to in Conditions 3(a) to 3(e) above and to the specific exclusions contained at Condition 4 below, Ingles & Hayday shall exercise such reasonable care when making express statements in catalogue descriptions or condition reports as is consistent with its role as auctioneer of lots in the sale to which these Conditions relate, and in the light of (i) the information provided to it by the Seller, (ii) scholarship and technical knowledge; and (iii) the generally accepted opinions of relevant experts in each case at the time any such express statement is made.
4. EXCLUSIONS AND LIMITATIONS OF LIABILITY TO BUYERS
(a) Ingles & Hayday shall refund the Purchase Price to the Buyer in circumstances where it deems that the lot is a Counterfeit and each of the conditions of the Authenticity Guarantee has been satisfied.
(b) In the light of the matters in Condition 3 above and subject to Conditions 4(a) and 4(e), neither Ingles & Hayday nor the Seller
(i) is liable for any errors or omissions in information provided to Bidders by Ingles & Hayday, whether orally or in writing, whether negligent or otherwise, except as set out in Condition 3(f) above;
(ii) gives any guarantee or warranty to Bidders and any implied warranties and conditions are excluded (save in so far as such obligations cannot be excluded by law) other than the express warranties given by the Seller to the Buyer in Condition 2 of the Seller's Conditions of Business;
(Iii) accepts responsibility to any Bidders in respect of acts or omissions (whether negligent or otherwise) by Ingles & Hayday in connection with the conduct of auctions or for any matter relating to the sale of any lot.
(c) Unless Ingles & Hayday owns a lot offered for sale, it is not responsible for any breach of these conditions by the Seller.
(d) Without prejudice to Condition 4(b), any claim against Ingles & Hayday or the Seller by a Bidder is limited to the Purchase Price with regard to that lot. Neither Ingles & Hayday nor the Seller shall under any circumstances be liable for any consequential losses.
(e) None of this Condition 4 shall exclude or limit Ingles & Hayday's liability in respect of any fraudulent misrepresentation made by Ingles & Hayday or the Seller, or in respect of death or personal injury caused by the negligent acts or omissions of Ingles & Hayday or the Seller.
5. BIDDING AT AUCTION
(a) Ingles & Hayday has absolute discretion to refuse admission to the auction. Bidders must complete a Paddle Registration Form and supply such information and references as required by Ingles & Hayday. Bidders act as principal unless they have Ingles & Hayday's prior written consent to bid as agent for another party. Bidders are personally liable for their bid and are jointly and severally liable with their principal if bidding as agent.
(b) Ingles & Hayday advises Bidders to attend the auction but will seek to carry out absentee written bids which are in Pounds Sterling and, in Ingles & Hayday's opinion, clear and received sufficiently in advance of the sale of the lot, endeavouring to ensure that the first received of identical written bids has priority. Where available, written and telephone bids are offered as an additional service for no extra charge, at the Bidder's risk and shall be undertaken with reasonable care subject to Ingles & Hayday's other commitments at the time of the auction. Ingles & Hayday therefore cannot accept liability for failure to place such bids. Telephone bids may be recorded.
6. CONDUCT OF THE AUCTION
(a) All lots are offered subject to a Reserve, which shall be no higher than the low presale estimate at the time of the auction.
(b) The auctioneer has discretion at any time to refuse any bid, withdraw any lot, re-offer a lot for sale (including after the fall of the hammer) if he believes there may be error or dispute, and take such other action as he reasonably thinks fit.
(c) The auctioneer will commence and advance the bidding at levels and in increments he considers appropriate and is entitled to place a bid or series of bids on behalf of the Seller up to the Reserve on the lot, without indicating he is doing so and whether or not other bids are placed.
(d) Subject to Condition 6(b), the contract between the Buyer and the Seller is concluded on the striking of the auctioneer's hammer, whereupon the Buyer becomes liable to pay the Purchase Price.
(e) Any post-auction sale of lots offered at auction shall incorporate these Conditions as if sold in the auction.
7. PAYMENT AND COLLECTION
(a) Unless otherwise agreed, payment of the Purchase Price for a lot and any Buyer's Expenses are due by the Buyer in Pounds Sterling immediately on conclusion of the auction (the "Due Date) notwithstanding any requirements for export, import or other permits for such lot.
(b) Title in a purchased lot will not pass until Ingles & Hayday has received the Purchase Price and Buyer's Expenses for that lot in cleared funds. Ingles & Hayday is not obliged to release a lot to the Buyer until title in the lot has passed and appropriate identification has been provided, and any earlier release does not affect the passing of title or the Buyer's unconditional obligation to pay the Purchase Price and Buyer's Expenses.
(c) The Buyer is obliged to arrange collection of purchased lots no later than seven (7) calendar days after the date of the auction. Purchased lots are at the Buyer's risk (and therefore their sole responsibility for insurance) from the earliest of i) collection or ii) seven calendar days after the auction. Until risk passes, Ingles & Hayday will compensate the Buyer for any loss or damage to the lot up to a maximum of the Purchase Price paid. Buyers should note that Ingles & Hayday's assumption of liability for loss or damage is subject to the exclusions set out in Condition 6 of the Conditions of Business for Sellers.
(d) For all items stored by a third party and not available for collection from Ingles & Hayday premises, the supply of authority to release to the Buyer shall constitute collection by the Buyer.
(e) All packing and handling is at the Buyer's risk. Ingles & Hayday will not be liable for any acts or omissions of third party packers or shippers.
8. REMEDIES FOR NON PAYMENT
Without prejudice to any rights the Seller may have, if the Buyer without prior agreement fails to make payment for the lot within five days of the auction. Ingles & Hayday Ltd may in its sole discretion (having informed the Seller) exercise one or more of the following remedies:
(a) store the lot at its premises or elsewhere at the Buyer's sole risk and expense;
(b) cancel the sale of the lot;
(c) set off any amounts owed to the Buyer by Ingles & Hayday against any amounts owed to Ingles & Hayday by the Buyer in respect of the lot;
(d) apply any payments made to Ingles & Hayday by the Buyer as part of the Purchase price and Buyer's Expenses towards that or any other lot purchased by the Buyer, or to any shortfall on the resale of any lot pursuant to paragraph (h) below, or to any damages suffered by Ingles & Hayday as a result of breach of contract by the Buyer;
(e) reject future bids from the Buyer or render such bids subject to payment of a deposit;
(f) charge interest at 6% per annum above HSBC Bank plc Base Rate from the Due Date to the date the Purchase Price and relevant Buyer's Expenses are received in cleared funds;
(g) exercise a lien over any of the Buyer's property which is in the possession of Ingles & Hayday. Ingles & Hayday shall inform the Buyer of the exercise of any such lien and within 14 days of such notice may arrange the sale of such property and apply the proceeds to the amount owed to Ingles & Hayday;
(h) resell the lot by auction or private sale, with estimates and reserves at Ingles & Hayday's discretion. In the event such resale is for less than the Purchase Price and Buyer's Expenses for that lot, the Buyer will remain liable for the shortfall together with all costs incurred in such resale; (i) commence legal proceedings to recover the Purchase Price and Buyer's Expenses for that lot, together with interest and the costs of such proceedings on a full indemnity basis; or (j) release the name and address of the Buyer to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs. Ingles & Hayday will take reasonable steps to notify the Buyer prior to releasing such details to the Seller.
9. FAILURE TO COLLECT PURCHASES
(a) If the Buyer pays the Purchase Price and Buyer's Expenses but fails to collect a purchased lot within thirty (30) calendar days of the auction, the lot will be stored at the Buyer's expense (and risk) with a third party. See Storage Charges, below.
(b) If a purchased lot is paid for but not collected within six months of the auction, the Buyer authorises Ingles & Hayday, having given notice to the Buyer to arrange a resale of the item by auction or private sale, with estimates and reserves at Ingles & Hayday's discretion. The proceeds of such sale, less all costs incurred by Ingles & Hayday, will be forfeited unless collected by the Buyer within two years of the original auction.
10. EXPORT AND PERMITS
It is the Buyer's sole responsibility to identify and obtain any necessary export, import, endangered species or other permit for the lot. Any symbols or notices in the sale catalogue reflect Ingles & Hayday's reasonable opinion at the time of cataloguing and offer Bidders general guidance only. Without prejudice to Conditions 3 and 4 above, Ingles & Hayday and the Seller make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes. The denial of any permit or licence shall not justify cancellation or rescission of the sale contract or any delay in payment.
11. GENERAL
(a) All images and other materials produced for the auction are the copyright of Ingles & Hayday, for use at Ingles & Hayday's discretion.
(b) Notices to Ingles & Hayday should be in writing, quoting the reference number and sale date specified at the beginning of the sale catalogue. Notices to Ingles & Hayday's clients shall be addressed to the last address formally notified by them to Ingles & Hayday.
(c) Should any provision of these Conditions of Business be held unenforceable for any reason, the remaining provisions shall remain in full force and effect.
(d) These Conditions of Business are not assignable by any Buyer without Ingles & Hayday's prior written consent, but are binding on Buyers' successors, assigns and representatives. No act, omission or delay by Ingles & Hayday shall be deemed a waiver or release of any of its rights.
(e) The Contracts (Rights of Third Parties) Act 1999 is excluded by these Conditions of Business and shall not apply to any contract made pursuant to them.
(f) The materials listed in Condition 1(a) above set out the entire agreement and understanding between the parties with respect to the subject matter hereof. It is agreed that, save in respect of liability for fraudulent misrepresentation, no party has entered into any contract pursuant to these terms in reliance on any representation, warranty or undertaking which is not expressly referred to in such materials.
I2. DATA PROTECTION
In connection with the management and operation of our business and the marketing and supply of services, or as required by law, we may ask clients to provide personal information about themselves or obtain information about clients from third parties (e.g., credit information). If clients provide Ingles & Hayday with information that is defined by law as "sensitive", they agree that Ingles & Hayday may use it for the above purposes. Ingles & Hayday will not use or process sensitive information for any other purpose without the client's express consent. If you would like further information, would like to make corrections to your information or would prefer not to receive details of future events, please contact us: +44(0)20 7042 7337 / info@ingleshayday.com. In order to fulfil the services clients have requested, Ingles & Hayday may disclose information to third parties (e.g., shippers). Some countries do not offer equivalent legal protection of personal information to that offered within the EU. It is Ingles & Hayday's policy to require that any such third parties respect the privacy and confidentiality of our clients' information and provide the same level of protection for clients' information as provided within the EU, whether or not they are located in a country that offers equivalent legal protection of personal information. By agreeing to these Conditions of Business, clients agree to such disclosure. Clients will please note that for security purposes, Ingles & Hayday's premises and auction venues at Sotheby's, are subject to video recording. Telephone calls e.g., telephone and voicemail messages may also be recorded.
13. LAW AND JURISDICTION
Governing Law These Conditions of Business and all aspects of all matters, transactions or disputes to which they relate or apply shall be governed by and interpreted in accordance with English law.
Jurisdiction For the benefit of Ingles & Hayday, all Bidders and Sellers agree that the Courts of England are to have exclusive jurisdiction to settle all disputes arising in connection with all aspects of all matters or transactions to which these Conditions of Business relate or apply. All parties agree that Ingles & Hayday shall retain the right to bring proceedings in any court other than the Courts of England.
Service of Process All Bidders and Sellers irrevocably consent to service of process or any other documents in connection with proceedings in any court by facsimile transmission, personal service, delivery by mail or in any other manner permitted by English law, the law of the place of service or the law of the jurisdiction where proceedings are instituted, at the last address of the Buyer or Seller known to Ingles & Hayday or any other usual address.
94-96 Wigmore Street: Lots will be released to you or your authorised representative when full and cleared payment has been received by Ingles & Hayday, together with settlement of any removal, interest, handling and storage charges thereon, appropriate identification has been provided and a release note has been produced. Our opening hours are 9.30-4.30pm Monday-Friday, excluding Bank Holidays. Any purchased lots that have not been collected within 30 days from the date of the auction will be subject to handling and storage charges at the rates set out below.
STORAGE CHARGES
Any purchased lots that have not been collected within 30 days from the date of the auction will be subject to handling and storage charges at the following rate: £4 plus VAT per lot per day.
LIABILITY FOR LOSS OR DAMAGE
Buyers are reminded that Ingles & Hayday accepts liability for loss or damage to lots for a maximum period of seven (7) calendar days after the date of the auction. Please refer to Condition 7 of the Conditions of Business for Buyers.
INGLES & HAYDAY'S AUTHENTICITY GUARANTEE FOR MUSICAL INSTRUMENTS
If Ingles & Hayday sells an item which subsequently is shown to be a "counterfeit", subject to the terms below, Ingles & Hayday will set aside the sale and refund to the Buyer the total amount paid by the Buyer to Ingles & Hayday for the item, in Pounds Sterling.
For these purposes, "counterfeit" means a lot that in Ingles & Hayday's opinion is an imitation created to deceive as to authorship or origin, where the correct description of such matters is not reflected by the description in the catalogue (taking into account the Glossary of Terms below). No lot shall be considered a counterfeit by reason only of any damage and/or restoration and/or modification work of any kind (including re-varnishing or over-varnishing). Please note that this Guarantee does not apply if either:
(i) the catalogue description was in accordance with the generally accepted opinion(s) of scholar(s) and expert(s) at the date of the sale, or the catalogue description indicated that there was a conflict of such opinions; or
(ii) the only method of establishing at the date of the sale that the item was a counterfeit would have been by means of processes not then generally available or accepted, unreasonably expensive or impractical to use, or likely to have caused damage to the lot or likely (in Ingles & Hayday's reasonable opinion) to have caused loss of value to the lot; or
(iii) there has been no material loss in value of the lot from its value had it been in accordance with its description; or
(iv) in the case of musical instrument bows where it is established on removal of the lapping, that the bow is a composite piece.
This Guarantee is provided for a period of thirty (30) days after the date of the relevant auction, is solely for the benefit of the Buyer and may not be transferred to any third party. To be able to claim under this Guarantee, the Buyer must:-
(i) notify Ingles & Hayday immediately on receiving any information that causes the Buyer to question the authenticity or attribution of the item, specifying the reasons why it is thought to be counterfeit; and
(ii) return the item to Ingles & Hayday in the same condition as at the date of sale to the Buyer and be able to transfer good title in the item, free from any third party claims arising after the date of the sale.
Ingles & Hayday has discretion to waive any of the above requirements. Ingles & Hayday may require the Buyer to obtain at the Buyer's cost the reports of two independent and recognised experts in the field, mutually acceptable to Ingles & Hayday and the Buyer. Ingles & Hayday shall not be bound by any reports produced by the Buyer and reserves the right to seek additional expert advice at its own expense.
OTHER NOTICES
ESTIMATES IN EUROS
As a guide to potential buyers, estimates for this sale are also shown in Euros. The estimates printed in the catalogue in Pounds Sterling have been converted at the following rate, which was current at the time of printing. These estimates may have been rounded: £1 = €1.18. By the date of the sale this rate is likely to have changed, and buyers are recommended to check before bidding. During the sale Ingles & Hayday may provide a screen to show currency conversions as bidding progresses. This is intended for guidance only and all bidding will be in Pounds Sterling. Ingles & Hayday is not responsible for any error or omissions in the operation of the currency converter. Payment for purchases is due in Pounds Sterling.
LIABILITY FOR LOSS OR DAMAGE FOR PURCHASED LOTS
Purchasers are requested to arrange clearance as soon as possible and are reminded that Ingles & Hayday accepts liability for loss or damage to lots for a maximum period of seven (7) calendar days following the date of the auction. Please refer to Condition 7 of the Conditions of Business for Buyers.
SAFETY AT INGLES & HAYDAY
Ingles & Hayday Ltd is concerned for your safety while you are on our premises and we endeavour to display items safely so far as is reasonably practicable. Nevertheless, should you handle any items on view at our premises, you do so at your own risk. Some items can be large and/or heavy and can be dangerous if mishandled. Should you wish to view or inspect any items more closely please ask for assistance from a member of staff to ensure your safety and the safety of the property on view.
DOCUMENTS AND CERTIFICATES
Clients are reminded that they should collect documents and certificates relating to lots directly from Ingles & Hayday. On request, Ingles & Hayday will arrange postage to the Buyer by recorded delivery. However, Ingles & Hayday cannot accept any responsibility for documents and certificates subsequently dispatched in this manner.
GLOSSARY OF TERMS
Standard terms and phrases have been used in describing the Musical Instruments included in this catalogue. We strongly recommend that all potential Buyers read the following summary of the cataloguing terms. If a potential buyer is uncertain as to the meaning of a cataloguing term, we suggest that further clarification is sought from Ingles & Hayday. Potential buyers should also note that any statement as to authorship, attribution, origin, date, age, provenance and condition is a statement of our opinion and is not to be relied upon as a statement of fact. We reserve the right, in forming our opinion, to consult and rely upon any expert or authority considered by us to be reliable. Please read carefully the terms of the Authenticity Guarantee and the Conditions of Business for Buyers set out above in this catalogue, in particular Conditions 3 and 4.
1. JEAN BAPTISTE VUILLAUME, (b Mirecourt, 1798; d Paris, 1875)
The instrument is in our opinion the work of the named maker. This category also includes instruments which were originally sold under the name of a particular dealer which were made especially for that dealer by a maker or workman who is in many cases unknown or unidentifiable.
2. ASCRIBED TO JEAN BAPTISTE VUILLAUME.
The instrument is believed to be by the named maker in the opinion of the author(s) or the authorities whose literature or certificates are referred to in the footnote to the lot. In our opinion the instrument is not necessarily the work of this maker or from the period of this maker.
3. ATTRIBUTED TO JEAN BAPTISTE VUILLAUME.
A traditional attribution as to the identity of the maker or date of manufacture of an instrument with which we do not necessarily agree.
4. WORKSHOP OF JEAN BAPTISTE VUILLAUME.
In our opinion the instrument was probably executed by an unknown hand on the premises of and under the direct supervision of the named maker.
5. CIRCLE OF JEAN BAPTISTE VUILLAUME
In our opinion, the instrument was executed by a contemporary of the named maker and exhibits his characteristics.
6. FOLLOWER OF JEAN BAPTISTE VUILLAUME; AND SCHOOL OF JEAN BAPTISTE VUILLAUME
In our opinion, the instrument bears the characteristics of the named maker but may not be from the period of this maker.
7. LABELLED OR STAMPED OR INSCRIBED
These terms are descriptive only and are not used by us to indicate our opinion as to the authorship, attribution, origin, date, age or provenance of an instrument. Unless a contrary opinion is expressed by us in the written description of a lot, potential buyers are advised to assume that an instrument which is labelled, stamped or inscribed with the name of a maker is not by that maker and may be a later copy or modelled after that maker.
Biographical details in this catalogue are drawn from: The New Grove Dictionary (sixth Edition); von Lütgendorff Die Geigen -und Lautenmacher von Mittelalter bis sur Gegenwart; William Henley Universal Dictionary of Violin & Bow Makers, and other standard sources. No assertion is made to the accuracy of these details.
