Conditions of Sale for Mallet Auction
The auctions of artworks, etc. conducted by Mallet Japan Inc. (hereinafter referred to as the "Company") under the name of Mallet Auction or otherwise shall be in compliance with these Rules. Any and all persons consigning property for sale, persons desiring to purchase properties, persons concluding sales agreements with the Company, and any other persons involved shall accept and obey these terms described below; provided, however, that if any other separate agreement exists between the Company and any such person, such agreement shall prevail.
Chapter I Properties Auctioned
1 Properties Auctioned
The Company shall host auctions for the sale of artworks consigned for sale (hereinafter referred to as the "Property" or "Properties") by way of auction.
2 Condition of the Properties
As the Properties are inherently old, they shall be sold "as is" and the Company shall not be liable for any spots, blemishes, or any other defects or damages caused due to the aging of the Properties.
3 Pre-Auction Viewing
(1)The Company will hold a pre-auction viewing for every Property to be auctioned.
(2)Persons who desire to purchase any Property shall, at their own decision and responsibility, inspect the auctioned works at the pre-auction viewing and place their bids.
(3)When a person desires admission to the pre-auction viewing, the Company may ask the person to present his/her identification and may refuse admission or ask the person to leave the pre-auction viewing.
(4)In case any person admitted to the pre-auction viewing causes any blemish or any other damage to a Property, the Company may demand compensation for such damage from such person.
(5)Schedules for the pre-auction viewing shall generally be announced in advance or described in the catalogue, subject to any change made by the Company at its own discretion. The Company shall not be liable for any damage incidental to such change in the schedule of the pre-auction viewing.
4 Catalogue etc.
(1)When auctioning a Property, the Company shall prepare and distribute for a fee a catalogue describing the Property as a reference for the prospective buyers. Additionally, the Company shall prepare and provide condition reports for prospective buyers as a reference as considered necessary, (hereinafter referred to under "catalogue etc.").
(2)Images and other representations in the catalogue etc. are inserted only for the purposes of reference and identification of the featured Property. In no event shall they be construed to convey the colors, color tones, forms, defects, condition, quality, etc. of the featured Property with complete accuracy.
(3)Any descriptions and explanations included in the catalogue etc., attached documents, errata, or prior reference information communicated orally or otherwise shall be provided only for the reference of prospective buyers, and in no event shall the Company be held liable for any error in such descriptions or any discrepancy between such descriptions and an actual Property. Prospective buyers shall inspect and examine the actual Property at the pre-auction viewing and bid for the Property at their own judgment and responsibility.
(4)The estimate described in the catalogue etc. shall be presented only for the reference of the prospective buyers. Accordingly, the Hammer Price at which the Property is actually traded through auction may fall below the lower limit or exceed the upper limit of the estimate; provided, however, that the Company shall in principle refrain from selling a Property at a price below the Reserve (The reserve price is unrelated to the lower limit of the estimate and shall be kept confidential).
(5)The descriptions and explanations given in the catalogue etc. may be changed without notice. Such changes shall be announced in writing or orally at the auction site. Prospective buyers shall confirm the details of such prior change at their own responsibility. In the case of such change, the Property shall be deemed to be auctioned subject to such change.
(6)The Company shall not accept the cancellation of a sales agreement arising from claims of any discrepancy between the information described in the catalogue etc. and the quality or condition of an actual Property.
(7)Reproduction and diversion of the catalogue etc. without permission of the Company shall be prohibited (including graphics and articles).
Chapter II Auction
5 Registration and Participation
(1)Any person desiring to participate in the auction may participate in the auction by either submitting and registering his/her address, name and any other necessary matters by following the instructions of the Company in advance or at the auction desk on the day of the auction (hereinafter referred to as "General Registration"), or by transmitting and registering his/her address, name and any other necessary matters in the prescribed form on the Company's website in advance (hereinafter referred to as "Online Registration") and paying the fees for the catalogue and the registrations prescribed by the Company. Auctions shall be conducted via the methods of "paddle display," "telephone bidding," "written bidding", and "online bidding".
(2)When a person desires registration, the Company may ask to inspect his/her identification and may refuse the registration at its own discretion.
(3)Neither a natural person whose address or domicile is not in Japan nor a corporation whose principal office is not located in Japan (hereinafter referred to as the "Overseas Prospective Buyer") may make the registration of (1) above. The Overseas Prospective Buyer shall participate in the auction by executing an agreement with the entrustee designated by the Company, Mallet International Co., Ltd., (hereinafter referred to as "Mallet International") to participate in the auction and bid based on the indicated desired purchase amount and also to purchase the item of his/her desire from Mallet International subject to the successful bid at the indicated bid price, at a price calculated as pursuant to the provisions set forth in Section 20-2, on his/her behalf (hereinafter referred to as the "Entrustment and Purchase Agreement") pursuant to the provisions set forth in Section 4.
(4)Any person who desires to participate in an auction and has registered in advance must be confirmed at the auction desk on the date of the auction.
6 Bidding Paddle
(1)The Company shall lend a bidding paddle to each registered participant at the auction desk on the day of the auction.
(2)Every auction participant shall always remain aware of the bid number of his/her own paddle and listen attentively to the bid numbers called out by the auctioneer. If the auctioneer instructs any participant to raise his/her paddle for the purpose of visibility, the person so instructed shall immediately do so.
(3)When any auction participant loses his/her paddle, he/she shall immediately notify a staff member of the Company at the auction site. All auction participants shall return their paddles to the Company immediately upon the end of an auction or when exiting in the middle of an auction.
(4)Every auction participant shall treat his/her paddle with due care and responsibility and shall not lend his/her paddle to a third party. Participants shall bear full responsibility for any damages arising from the loss, theft, or borrowing and lending of their paddles. In no event shall the Company bear any liability for such damages whatsoever.
7 Method of Auction
(1)An auctioneer appointed by the Company shall preside over and conduct every auction. Every auction shall be conducted by the bidding-up system, and the starting price and increments of bidding shall be decided at the discretion of the auctioneer. The bidding price shall not include the Buyer's Premium, consumption tax thereon, or any other costs and expenses. Every auction participant agrees in advance to pay the Company the full amount of the Buyer's Premium, consumption tax thereon, and all other costs and expenses in case his/her bid is successful.
(2)Every auction participant must be approved by the Company and registered with the Company. Unless otherwise agreed in advance with the consignor, the Company shall not announce the name of such consignor or the Reserve even if the Reserve has been set.
(3)The auctioneer may participate in the auction himself/herself at his/her own discretion until the price reaches the Reserve.
(4)In case any dispute arises between auction participants or between the auctioneer and any auction participant, the final winning bidder shall be decided through either re-auction or the judgment of the auctioneer. In such case, any and all parties involved in such auction must obey the final decision reached. Moreover, the auctioneer may refuse any purchase offer at his/her own discretion.
(5)Every auction participant shall be deemed to participate in the auction as a principal unless he/she has notified the Company in writing of his/her desire to participate in the auction as an agent or a representative of another person in advance and the Company has consented thereto; provided that more than one person may not bid for a Property under a joint name.
(6)A bidder shall express his/her intention to place a bid by raising his/her paddle so that the auctioneer can see it, or with gestures or in any other manner recognizable by the auctioneer. When a bidder judges that the auctioneer has failed to recognize the bidder's intention to place a bid, the bidder must immediately take actions to draw the attention of the auctioneer.
(7)A bidder shall be bound by the price of his current bid until any other bidder places a bid at a higher price. Any bid shall become void when any other bidder places a bid at a higher price and the auctioneer recognizes such higher price.
(8)The winning bid shall be finally decided when the auctioneer calls out the highest price bid multiple times and brings down the hammer. The person who has bid the highest bidding price before the auctioneer brings down the hammer shall be the winning bidder; provided, however, that if the auctioneer judges that the auction needs to be continued, he/she may resume the auction again at his/her own discretion. When the auctioneer brings down the hammer, the winning bidder and the Company shall enter a sales agreement under which the bidding price for the relevant Property shall be the sales price, and the winning bidder shall be obligated to pay the amount of the Hammer Price plus the prescribed Buyer's Premium, consumption tax thereon, and any other costs and expenses.
(9)Nobody may protest the decision of the winning bidder of an auction after the auctioneer starts the bidding for the auction of the next Property.
8 Written Bids, Online Bids or Telephone Bids
(1)Persons registered with the Company who desire to participate in an auction may participate by written bids, online bids or telephone bids, as well as by direct participation at the auction site.
(2)Any person who desires to participate in an auction by written bids shall fill in the Absentee Bids Form attached to the pertinent catalogue, send the form to the Company to apply for participation, obtain the approval of the Company, and follow the instructions of the Company; provided, however, that if such Absentee Bids Form fails to arrive or arrives after the application deadline due to erratic delivery or otherwise, or if the Company cannot recognize such a request for a written bid, the Company shall deem that such application is not made and the Company shall assume no responsibility. Any person who desires to participate in an auction by online bids shall complete the Online Registration in advance as pursuant to the provisions set forth in Section 5-1, be issued with an online account from the Company, access the Company's website from such online account, input the necessary matters and complete the prescribed form to the Company to apply for participation, obtain the approval of the Company, and follow the instructions of the Company; provided, however, if such form fails to arrive or arrives after the application deadline due to technical difficulties or otherwise, or if the Company cannot recognize such a request for an online bid, the Company shall deem that such application is not made and the Company shall assume no responsibility; provided further that the Company may refuse the application of any person desiring to participate in any auction by written or online bids at its own discretion.
(3)The Company shall accept written bids delivered directly in person at the pre-auction viewing or delivered by facsimile or mail not later than one (1) business day prior to the date of the auction. The Company shall accept online bids submitted using the prescribed form on the Company's website no later than one (1) business day prior to the date of the auction; provided that the bidder's indicated bid price in such written bids or online bids shall not include the amount of the prescribed Buyer's Premium, the consumption tax thereon, and any other costs and expenses.
(4)If the indicated bid price from more than one bidder participating in an auction by written or online bids are exactly the same; in the case of written bids, the written bid which arrives at the Company first shall prevail, in the case of online bids, the online bid acknowledged to have been received by the Company first shall prevail; provided, however, that if such bids with the same indicated bid price arrive at the same time, the Company will choose the winner by drawing lots.
(5)When the Company finds any instruction by a participant by written or online bid to be incomplete or inadequate, it may decide not to follow such instruction, and in such case the Company shall not be responsible in any respect.
(6)The Company shall assume no responsibility for any failures which may occur in the course of processing the instructions of a participant included in a written or online bid, regardless of the reason.
(7)If any description or explanation described in the catalogue etc. is changed, the announcement about such change at the auction site shall be deemed to be a notice of such change and instruction by any written or online bid shall be deemed to be made subject to such changed description and explanation. Although the Company shall endeavour to notify bidders of all changes in descriptions and explanations, it shall assume no responsibility whatsoever if a bidder of a written or online bid fails to receive such notification for any reason.
(8)If the indicated bid price by any bidder of a written or online bid and the price bid by any participant at the auction site are the same, the auctioneer may decide the final winning bidder at his/her own discretion.
(9)Any person who desires to participate in an auction by telephone shall fill in the Absentee Bids Form attached to the pertinent catalogue and send the form to the Company to apply for participation.?Any person who has completed the Online Registration and been issued with an online account from the Company shall access the Company's website from such online account, fill out and send the prescribed form to the Company to apply for participation by telephone. Any person who has applied for participation pursuant to the aforementioned conditions must obtain the approval of the Company, and follow the instructions of the Company.
(10)If the number of participants desiring to participate in an auction by telephone simultaneously exceeds the number of phone lines available, the Company shall accept bids on a first-come-first-served basis; provided that the Company may refuse to accept any telephone bid application at its own discretion.
(11)The Company shall not be responsible for any failures with respect to the bidding instructions made by participants by telephone due to miscommunication, trouble with telephone lines, or any other reasons
Chapter III Successful Bidder
9 Purchase Price
(1)In addition to paying the relevant Hammer Price, the successful bidder shall pay the Company the total amount of the Buyer's Premium. The buyer's premium on each lot is 16.2 percent of the Hammer Price (the total amount of the Hammer Price and the Buyer's Premium incidental thereto shall hereinafter be referred to as the "Purchase Price").
(2)The successful bidder shall pay the Company the total amount of the Purchase Price in Japanese Yen within ten (10) days after the date of the auction (if the final day of such period falls on a non business day of the Company, the due date shall fall on the following business day instead) in cash, by a bank casher's check of any bank or credit association provided for in the Bank Law, or by a bank remittance to the bank account described below (such remittance shall be required to be completed by the due date).
Account Name: Mallet Japan Inc.
Mizuho Bank, Ltd., Yaesuguchi Branch,
Ordinary account 1012974
10?Delivery of Purchased Property
(1)After the successful bidder completes payment of the Purchase Price, the Company shall hand over the relevant purchased property; provided, however, that if such successful bidder has any obligations due and payable to the Company other than the Purchase Price, the Company shall not hand over the purchased property until the bidder fulfills all of such obligations as well as the Purchase Price (the Purchase Price and any and all obligations due and payable to the Company shall hereinafter be referred to as the "Purchase Price, etc.").
(2)The successful bidder shall, after paying off the Purchase Price, etc., pick up the purchased property within the payment period at the premises of the Company or in such other place designated by the Company. If the successful bidder cannot pick up the Property by himself/herself, he/she may entrust an agent, a representative, or a carrier with the pickup or transportation at the expense and responsibility of the successful bidder.
(3)Costs and expenses for such pickup or transportation of a purchased property shall be borne by the successful bidder, and the Company shall not be liable for any accident involving the purchased property after the time of handover (when the Company passes the purchased property over to the successful bidder or its agent, its representative, or the carrier). When the successful bidder requests the Company to make shipping arrangements, the Company shall do so only for the benefit of the successful bidder. In such case, the successful bidder shall take all reasonable measures against risk to the purchased property through the purchase of insurance, etc., and the Company shall assume no responsibility for any damage (disappearance, loss, theft, deterioration, defacement) occurring after the handover, even if the carrier appointed by the Company has proven unreliable or has caused such damage to the purchased property. The successful bidder must, at their own judgment, responsibility and burden, pack the purchased property in the manner which the successful bidder considers appropriate. Although the Company may pack the purchased property in a manner it deems appropriate for shipment and delivery, the Company shall bear no responsibility for such packing.
(4)The successful bidder may inspect the purchased property when picking it up. After the handover of the purchased property from the Company to the successful bidder (including its agent, representative or carrier), however, the successful bidder may not raise any claim regarding any mistake, deterioration or defacement with respect to the purchased property, terminate the agreement on the grounds of any mistake, deterioration or defacement with respect to the purchased property, or make any other complaint to the Company, unless such mistake, deterioration or defacement with respect to the purchased property can be reasonably attributed to the willful acts or gross negligence of the Company, regardless of whether the successful bidder has inspected the purchased property at the pickup; provided, however, that if the Company hands over any Property different from the purchased property by mistake, it may request the successful bidder to return the Property and the successful bidder shall grant such request.
(5)When the successful bidder picks up the purchased property, he/she shall present to the Company a prescribed invoice issued by the Company. If the Company passes the purchased property over to any person other than the successful bidder who appears with the prescribed invoice issued by the Company and thereafter the successful bidder fails to receive the purchased property, the Company shall not be responsible therefor.
11 Transfer of Title and Burden of Risk
(1)The successful bidder shall burden risks of the purchased property on and after the time of conclusion of the sales agreement with respect to the purchased property. (Any disappearance, loss, theft, deterioration, or defacement caused for any reason not attributable to the Company shall be burdened by the successful bidder and the successful bidder shall not be exempted from payment of the Purchase Price.)
(2)The title to the purchased property shall not be transferred to the successful bidder until the successful bidder completes payment of the Purchase Price, etc. and the Company hands over the purchased property to the successful bidder. The title to the purchased property shall be transferred to the successful bidder upon completion of payment of the Purchase Price, etc. by the successful bidder and the handover of the purchased property by the Company.
12?Extension of Payment
(1)If the successful bidder asks for an extension of the payment due date for the Purchased Price, etc. in writing, the Company may extend the payment due date by giving a written notice setting a grace period to the successful bidder; provided, however, that the successful bidder shall have no right to request such extension of the payment due date and the Company may, at its own discretion, decide not to grant such extension.
(2)The successful bidder shall pay the interest on the Purchase Price, etc. incurred during the grace period (at the rate set from time to time and notified in writing by the Company).
(3)If a provisional attachment with respect to other obligations of the successful bidder or compulsory execution is filed, or an application or a petition is filed for commencement of a bankruptcy procedure, civil rehabilitation procedure, corporate reorganization procedure, company arrangement or special liquidation of the successful bidder, or any draft or check drawn by the successful bidder is dishonored, or the performance of any part of the obligations payable to the Company is delayed, the Purchase Price, etc. shall immediately become due without notice from the Company and the successful bidder shall pay the Purchase Price, etc. forthwith.
13 Expenses Necessary for Storage and Insurance (Charges)
(1)The successful bidder shall not be required to pay the expenses for the storage and insurance of the purchased property during the payment period. If the successful bidder fails to pick up the purchased property during the payment period, he/she must pay expenses for the storage and insurance of the purchased property incurred from the first day after the end of the payment period up to the day of the actual pickup; provided, however, that the Company shall not be obliged to take such insurance.
(2)When the Company grants an extension of the payment due date to the successful bidder, the successful bidder shall pay expenses for the storage and insurance of the purchased property incurred from the day after the end of the payment period up to the complete payment of the Purchase Price, etc. and the pickup of the purchased property.
14?Handling of Property Stolen, Lost or Registered without Entitlement
(1)If any person claiming to be the true owner of the purchased property proves that the purchased property has been stolen or lost and demands the return of the property before handover by the Company to the successful bidder, or if the purchased property is identified as an item whose trade or possession is prohibited by law, the Company may terminate the sales agreement without notice to the successful bidder. If the Company has received any payment of the Purchase Price from the successful bidder in such case, the Company shall return it to the successful bidder free of interest and the successful bidder may not make a claim for damage or any other claims to the Company.
(2)In case any chief of police orders the Company to keep hold of the purchased property pursuant to the provisions of Article 21 of the Antique Dealing Law and such holding period exceeds ten (10) days from the day following the date of the auction, the Company shall not hand over the purchased property to the successful bidder until the holding period expires, and the provisions of 9-(3) shall apply by changing the wordings "within ten (10) days from the date of the auction" provided for therein to "within three (3) days after the final day of the holding period of the property by order of the chief of police," and the provisions of 10-(2), 13-(1) and (2) and 15 shall apply upon changing the wording "payment period" provided for in the aforesaid three Articles correspondingly; provided that if the handover of the purchased property is delayed on the grounds of such storage, the Company shall not be responsible for the results caused due to such delay.
(3)If any successful bidder falls under description of the Overseas Prospective Buyer and proves to be registered without entitlement to participate in the auction against the provision of 5-(3) before delivery by the Company to the successful bidder, the Company may terminate the sales agreement without notice to the successful bidder. If the Company has received any payment of the Purchase Price from the successful bidder in such case, the Company shall return it free of interest and the successful bidder may not make a claim for damage or any other claims to the Company.
15?Defaults by Successful Bidder
In the event the successful bidder fails to pay the Purchase Price, etc. in full by the due date, he/she shall comply with the following provisions.
i)The successful bidder shall pay a default interest on the remaining amount of the Purchase Price, etc. at the rate of 14.6% per annum incurred from the day following the due date up to the day of complete payment of such total amount.
ii)The Company shall store the purchased property after expiration of the payment period in any manner the Company deems appropriate at its own discretion. Should the purchased property disappear or be lost, stolen, deteriorated, or defaced, the Company shall not be responsible for such damage unless such damage is caused by the willfulness or gross negligence of the Company, and the successful bidder shall not be exempted from payment of the Purchase Price, etc. The Company shall not be obliged to take insurance for the purchased property during the storage period.
iii)In the event the successful bidder fails to pay the Purchase Price, etc. as demanded by the Company, the Company may terminate the sales agreement; provided, however, that if a notice of demand for payment and termination of a sales agreement sent by the Company to the address of the successful bidder registered with or notified to the Company is returned because of absence or address unknown of the recipient, or if the successful bidder refuses to receive such notice, the Company may terminate the sales agreement when the due date specified in such notice becomes overdue even though such notice has not been received by the successful bidder, and the sales agreement shall be deemed to be terminated on the date when such notice would normally have been received at the registered or notified address, and the successful bidder shall agree with the same in advance.
iv)If the sales agreement is terminated pursuant to the preceding paragraph, the Company may sell the purchased property to a third party without setting the Reserve through an auction or private sale. If the price at which such purchased property is sold to the third party is below the Purchase Price of such purchased property, the successful bidder shall pay the difference and a default interest thereon at the rate of 14.6% per annum for the period from the date of the auction or the date of sales to the third party by private sale up to the complete payment of the sales price. If the sales price of such purchased property exceeds the Purchase Price thereof, the successful bidder may not demand such difference from the Company.
16?Guarantee of Authenticity
(1)If the name of an artist of a Property is definitively specified in the catalogue etc. of the Company without reservation and it is proven at a later date that the artist of the Property may not be identified and the Company acknowledges such fact, the Company may terminate the sales agreement upon demand by the successful bidder and refund the Purchase Price in exchange for the return of such Property, provided that the successful bidder fulfills the conditions referred to in each of the following provisions; provided further, however, that the Company shall assume no responsibility other than refund of the Purchase Price and shall not pay any interest, damage, or compensation to the successful bidder.
i)Only if the successful bidder sends a written demand to the Company indicating the date of the auction, the lot number of the Property, and the Hammer Price, together with any evidence by which the Company may be satisfied that such Property is not a work of the artist as described in the catalogue etc., within three (3) years after the date of the auction. Persons who may make such demand shall be limited to successful bidders, and the rights of successful bidders to make such demand may not be assigned or offered as security to third parties.
ii)Only if the successful bidder has the complete ownership of the purchased property and transfers the complete title to the purchased property to the Company and delivers the purchased property to the Company in a condition identical to that at the time of the auction.
(2)The Company shall only recognize the authentication of a Property (designation of the authenticity or inauthenticity) under the following conditions:
i)with respect to the work of a deceased artist: only if authenticated by any authentication committee, any registration committee of a professional arts association designated by the Company, any designated appraiser, or any professional art researcher;
ii)with respect to the work of a living artist: only if authenticated by the artist in question, an agent of authentication approved by the artist, or any relative designated by laws;
iii)with respect to the prints of a deceased artist: only if verified with the Catalogue Raisonne, the relevant book, or the relevant exhibition catalogue; or
iv)with respect to the prints of a living artist: only if verified with the Catalogue Raisonne, the relevant book, or the exhibition catalogue, or only if authenticated based on any opinion of the artist in question, an agent of authentication approved by the artist, or any relative designated by law.
In each of the paragraphs above, if any opinion of the aforesaid authenticators with respect to the authenticity of a Property is changed after the publication of the descriptions of the Property in the catalogue etc., or if any opinion with respect to the authenticity of a Property is changed as a result of any scientific inspection other than the inspections used for the authentications referred to in the preceding paragraphs, or by any method of examination or analysis which was not available at the time of the relevant auction, the Property shall not be subject to the termination of the sales agreement and the Company shall have no responsibility incidental to such change in opinions. If it is deemed impossible to inspect or verify any print Property with the Catalogue Raisonne (because the Catalogue Raisonne is not published, the relevant Property is not illustrated therein or unclear, or data is incomplete or has any misprints), the Company's opinion shall be deemed to be the final judgment.
Chapter IV Procedures for Overseas Prospective Buyers
17?Pre-auction Viewing and Catalogue
The Overseas Prospective Buyer, as well as the prospective buyer in Japan, may participate in the pre-auction viewing in accordance with the provision of 3 and purchase a catalogue by paying its cost to the Company in accordance with the provision of 4. The Company will also, in accordance with the provision of 4, provide condition reports considered necessary for the Overseas Prospective Buyer.
18?Entrustment and Purchase Agreement
(1)The Overseas Prospective Buyer shall, prior to the auction, execute the Entrustment and Purchase Agreement with Mallet International, the entrustee designated by the Company.
(2)The Entrustment and Purchase Agreement shall be applied for in either written form using a document prepared under the format designated by Mallet International, or by sending and submitting the prescribed form on Mallet International's website. Mallet International may, prior to the execution of such Agreement, ask the Overseas Prospective Buyer to present materials to show his/her identification and credibility and implement a check of credibility based on the presented materials and any other information.
(3)The Entrustment and Purchase Agreement will become effective once the aforementioned application has been received by Mallet International (via facsimile, post or electronic mail or other such method) in addition to being issued with a notice from Mallet International acknowledging the approval of such application.
(4)The Overseas Prospective Buyer shall provide Mallet International with instructions in writing, online or by telephone under the Entrustment and Purchase Agreement.
(5)If the Overseas Prospective Buyer provides instructions in writing, the item of his/her desire and his/her intended bid price (indicated bid price) shall be notified to Mallet International by sending by facsimile or mail a document prepared under the format designated by Mallet International (hereinafter referred to as the "Indication of Intended Bid") not later than one (1) business day prior to the date of the auction. The Overseas Prospective Buyer who has executed The Entrustment and Purchase Agreement as pursuant to the provisions set forth in paragraph (2) of this Article, may indicate an intended bid online by sending and submitting the prescribed form on Mallet International's website. If the Overseas Prospective Buyer provides instructions online no later than one (1) business day prior to the date of the auction, accesses Mallet International's website from an online account issued by Mallet International, inputs and submits the necessary matters in the prescribed form, thereby notifying the item of his/her desire and his/her intended bid price (indicated bid price), they may convert such instructions into an Indication of Intended Bid. Any Overseas Prospective Buyer who provides an Indication of Intended Bid either in writing or online, shall not include the amount of the prescribed Buyer's Premium and any other costs and expenses payable to Mallet International, nor include any other costs and expenses payable to Mallet International by the Overseas Buyer within the indicated bid price, and the Overseas Prospective Buyer shall obtain the approval and follow the instructions of Mallet International; provided, however, that if such Indication of Intended Bid fails to arrive or arrives after the application deadline due to erratic delivery, technical difficulty or otherwise, or if Mallet International cannot recognize such an Indication of Intended Bid, Mallet International shall deem such an Indication of Intended Bid as not made and Mallet International shall assume no responsibility; provided further that Mallet International may refuse the Indication of Intended Bid of any person who provides instructions in writing or online at its own discretion.
(6)If the indicated bid price by more than one Overseas Prospective Buyer are the same, the Indication of Intended Bid which arrives at Mallet International before the others shall prevail; provided that if such Indications arrive at the same time, Mallet International will choose the winner by drawing lots.
(7)Mallet International shall assume no responsibility for any failures in executing the Indication of Intended Bid due to mistakes or any other reasons.
(8)If the Overseas Prospective Buyer desires to provide his/her instruction by telephone (telephone bid), the telephone number to be used to provide such instruction shall be notified and the application for providing such instruction by telephone shall be submitted to Mallet International by sending a document prepared under the format designated by Mallet International, or by accessing Mallet International's website from an online account issued by Mallet International, inputting and submitting the necessary matters in the prescribed form, not later than two (2) business days prior to the date of the auction.
(9)If the number of the applications submitted for providing instructions by telephone exceeds the number of phone lines available, Mallet International shall decide the Buyers participating with instructions by telephone in order of arrival of the applications; provided that Mallet International may, at its own discretion, refuse to accept such application for participating with instructions by telephone.
(10)The Company shall not be responsible for any failures with respect to the instructions provided by telephone due to miscommunication over the telephone, trouble with telephone lines or any other reasons.
(11)If any instruction of the Overseas Prospective Buyer provided in writing, online, or by telephone is incomplete and Mallet International deems it inappropriate, Mallet International may choose not to follow such instruction, and, in such case, shall assume no responsibility therefor.
(12)If any description or explanation described in the catalogue etc. is changed by the Company, Mallet International shall endeavour to notify the Overseas Prospective Buyer of such changes; provided that Mallet International shall make a bid in accordance with the Indication of Intended Bid or the instruction provided by telephone and shall assume no responsibility due to such changes in the description or explanation described in the catalogue etc. even if the notice of such changes has not reached the Overseas Prospective Buyer in advance.
19?Successful Bid
(1)A bid by Mallet International shall be made under the provisions of Chapter II in the same way as that of the other prospective buyers and a purchase agreement shall be concluded between the Company and Mallet International when Mallet International wins a bid.
(2)Subject to the successful bid by Mallet International, the purchase under the Entrustment and Purchase Agreement shall become effective between Mallet International and the Overseas Prospective Buyer. The Overseas Prospective Buyer thereafter shall be hereinafter referred to as the "Overseas Buyer".
20?Overseas Purchase Price
(1)Mallet International shall pay to the Company the Purchase Price under the provision of 9 after the successful bid; provided, however, that Mallet International may delay the payment of the Purchase Price to the Company if there is an unavoidable reason notwithstanding the provision of 9-(2). Neither the Company nor the consigner may raise a claim to Mallet International for any interest, damage or compensation for damage.
(2)The sales price for each Purchased Property payable by the Overseas Buyer to Mallet International as pursuant to the Entrustment and Purchase Agreement, is the sum of the Hammer Price and an additional 16.2 percent of the Hammer Price (hereinafter referred to as the "Overseas Purchase Price").
(3)The Overseas Buyer shall pay Mallet International the total amount of the Overseas Purchase Price in the preceding paragraph in Japanese Yen within ten (10) days after the date of the auction (if the final day of such period falls on a non business day of Mallet International, the due date shall fall on the following business day instead) in cash or by a bank remittance to the bank account described below (such remittance shall be required to be completed by the due date):
Account Name: Mallet International Inc.
Mizuho Bank, Ltd., Yaesuguchi Branch,
Ordinary account 2580199
21?Delivery of Purchased Property
(1)After the Overseas Buyer completes payment of the Overseas Purchase Price and the purchased property is delivered by the Company, Mallet International shall take procedures to transport the purchased property to the location designated by the Overseas Buyer without delay; provided, however, that, if such an Overseas Buyer has any obligations due and payable to Mallet International other than the Overseas Purchase Price, including expenses for storage, shipping and insurance set forth in 23, Mallet International may suspend such procedures to transport the purchased property until the Overseas Buyer fulfills all of such obligations as well as the Overseas Purchase Price and the Company delivers the purchased property (the Overseas Purchase Price and any and all obligations due and payable to Mallet International shall hereinafter be referred to as the "Overseas Purchase Price, etc.").
(2)Mallet International may pack the purchased property in the manner which it considers appropriate for transportation; provided, however, that Mallet International shall assume no responsibility for such packing. Costs and expenses for such packing shall be borne by the Overseas Buyer and Mallet International shall charge the Overseas Buyer such costs and expenses.
(3)Mallet International shall arrange for a carrier, import, export and customs procedures, and purchase insurance which it considers appropriate; provided, however, that Mallet International shall assume no responsibility for any accidents, such as loss, theft, damage or defacement, including the propriety of the choice of a carrier, insurance or import, export and customs procedures, at the time of or after the delivery by the Company. Payments to a carrier and costs and expenses to purchase insurance and for import, export and customs procedures shall be borne by the Overseas Buyer and Mallet International shall charge the Overseas Buyer such costs and expenses.
(4)The Overseas Buyer may inspect the purchased property when picking it up. Once Mallet International delivers the purchased property to the Overseas Buyer (including its agent, representative or carrier), the Overseas Buyer may not raise any claim regarding any mistake, deterioration or defacement with respect to the purchased property, terminate the agreement on the grounds of any mistake, deterioration or defacement with respect to the purchased property, or raise any other claim to Mallet International at and after the time of delivery, unless it is due to the willfulness or gross negligence of Mallet International, regardless of whether the Overseas Buyer has actually inspected the purchased property; provided, however, that if Mallet International delivers any property different from the purchased property by mistake, Mallet International may request its return and the Overseas Buyer shall respond to such a request.
(5)When the Overseas Buyer picks up the purchased property, he/she shall present to Mallet International an invoice designated by Mallet International. Once Mallet International delivers the purchased property to a person who has submitted the designated invoice, Mallet International shall assume no responsibility for any accident caused when the purchased property is picked up by a person other than the Overseas Buyer.
22?Transfer of Title and Burden of Risk
(1)The Overseas Buyer shall bear risks of the purchased property on and after the time that a sales agreement with respect to the purchased property becomes effective. (Any disappearance, loss, theft, deterioration or defacement caused for any reason not attributable to Mallet International shall be burdened by the Overseas Buyer and the Overseas Buyer shall not be exempted from payment of the Overseas Purchase Price, etc.)
(2)The title to the purchased property shall not be transferred to the Overseas Buyer until the Overseas Buyer completes payment of the Overseas Purchase Price, etc. and Mallet International delivers the purchased property to the Overseas Buyer. The title to the purchased property shall be transferred to the Overseas Buyer upon completion of payment of the Overseas Purchase Price, etc. by the Overseas Buyer and delivery of the purchased property by Mallet International.
23?Handling of Stolen or Lost Property
(1)If any person claiming to be the true owner demands the return of the purchased property as being stolen or lost before delivery thereof by Mallet International to the Overseas Buyer, or if the purchased property is identified as an item whose trade or possession is prohibited by law, Mallet International may terminate the Entrustment and Purchase Agreement without notice to the Overseas Buyer. If Mallet International has received any payment of the Overseas Purchase Price from the Overseas Buyer in such case, Mallet International shall return it free of interest and the Overseas Buyer may not make a claim for damage or any other claims to Mallet International.
(2)In case any chief of police orders Mallet International to keep hold of the purchased property pursuant to the provisions of Article 21 of the Antique Dealing Law and such holding period exceeds ten (10) days from the day following the date of the auction, the Company shall not deliver the purchased property to the successful bidder until the holding period expires, and the provision of 20-(2) shall apply by changing the wordings of "within ten (10) days from the date of the auction" to "within three (3) days after the final day of the holding period of the property by order of the chief of police," and the provision of 24 shall apply by changing the wordings of the "payment period" or the "due date" provided for in each provision to the period or date changed pursuant to the above; provided that, if delivery of the purchased property is delayed due to the above, Mallet International shall assume no responsibility for the results caused due to such delay.
24?Defaults by the Overseas Buyer
In the event the Overseas Buyer fails to pay the Overseas Purchase Price, etc. in full by the due date, the following provisions shall be applied:
i)The Overseas Buyer shall pay a default interest on the remaining amount of the Overseas Purchase Price, etc. at the rate of 14.6% per annum incurred from the day following the due date up to the day of complete payment of such total amount.
ii)Mallet International shall store the purchased property after expiration of the payment period in any manner which Mallet International deems appropriate at its own discretion. Should the purchased property disappear or be lost, stolen, deteriorated or defaced before delivery to the Overseas Buyer, Mallet International shall assume no responsibility therefor unless it is caused by the willfulness or gross negligence of Mallet International and the Overseas Buyer shall not be exempted from its obligation to pay the Overseas Purchase Price, etc. Mallet International shall not be obliged to purchase insurance for the purchased property during such period.
iii)In the event that the Overseas Buyer fails to pay the Overseas Purchase Price, etc. as demanded by Mallet International, Mallet International may terminate the Entrustment and Purchase Agreement; provided, however, that, if a notice of demand and termination sent to the address of the Overseas Buyer registered with or notified to Mallet International is returned due to the absence of a recipient or an undeliverable address, or if the Overseas Buyer refuses to receive such notice, Mallet International may terminate the Entrustment and Purchase Agreement upon lapse of the due date specified in such notice even though such notice has not reached the Overseas Buyer, and the Entrustment and Purchase Agreement shall be deemed to be terminated at the time that such notice would normally reach the registered or notified address, and the Overseas Buyer acknowledges the above in advance.
iv)If the Entrustment and Purchase Agreement is terminated pursuant to the preceding paragraph, Mallet International may sell the purchased property to a third party without setting the Reserve through an auction or private sale. If the price at which such purchased property is sold to the third party is below the Overseas Purchase Price of such purchased property, the Overseas Buyer shall pay to Mallet International the difference with a default interest thereon at the rate of 14.6% per annum for the period from the date of the auction or the date of sales to a third party by private sale up to the complete payment of such a price. If the sales price of such purchased property to a third party exceeds the Overseas Purchase Price thereof, the Overseas Buyer may not demand payment of such difference from Mallet International.
25?Guarantee of Authenticity
Mallet International will refund the purchase price up to the same amount as the Overseas Purchase Price only if the Overseas Purchase Price is refunded by the Company to it; provided, however, that Mallet International shall assume no obligation other than the obligation to refund the Overseas Purchase Price and shall not pay any interest, damage or compensation for damage.
Chapter V Consignments of Auction Sales
26?Consignments of Auction Sales
(1)Any person who intends to consign the sale of any Property by way of auction under the name of the Company shall apply to the Company for consignment of auction sale in accordance with these rules and the agreement on consignment of sales separately provided by the Company.
(2)Any person requesting the consignment of sales shall warrant to the Company that he/she has the complete ownership of the consigned Property or the authority to consign the sale of such Property based on the complete ownership of such Property.
(3)The Company shall not publish the name of the consignor at the auction or in the catalogue etc. without the consent of the consignor.
27?Reserves
(1)Any person who intends to consign the sale of any Property to the Company may set the Reserve for the sale of the Property; provided that such Reserve shall be denominated in Japanese Yen.
(2)If the Reserve is set, the Company shall not sell the Property at a price lower than the Reserve without special reason.
(3)If the Company anticipates that no bidder will make a successful bid at or above the Reserve of the Property, it may, at any time, suggest a change in the Reserve to the consignor and change the Reserve with the consent of the consignor.
(4)If the consignor does not set any Reserve, the Company may sell the Property without setting the Reserve on the Property.
(5)The consignor may not change any Reserve that has been set and agreed with the Company, without consent of the Company.
28?Commission Fee
The consignor shall pay the Company the commission fee separately set by the Company and any royalties for copyrights and others, meaning the actual amounts of royalties for copyrights and any costs and expenses to be paid by Mallet Japan to authors in inserting images of the Properties in the catalogue etc., and any consumption taxes on them, regardless of whether the consigned Property has been successfully sold or not.
29?Termination
(1)In the event the Company judges that the consigned Property is inappropriate for auction and/or the consignor does not follow instructions of the Company, the Company may refuse an application for a sales consignment agreement or terminate a sales consignment agreement already in effect.
(2)A consignor may not terminate a sales consignment agreement after execution of such agreement with the Company; provided, however, that if the Company consents to such termination and the consignor compensates for damages in the amount separately determined by the Company, the consignor may terminate the sales consignment agreement.
(3)If the Company has already received the consigned Property upon termination of the sales consignment agreement, the Company may return such consigned Property at the expense and risk of the consignor.
30?Notice of Sales
When the consigned Property is sold at an auction, the Company shall notify the consignor to that effect without delay.
31?Payment
Unless otherwise agreed by both parties, the Company shall make payment to the consignor in an amount calculated by subtracting the Commission Fee, consumption tax thereon, catalogue etc. illustration fee, insurance premium, and any other expenses (such as costs for restoration and authentication) from the Hammer Price twenty (20) days after the date of the auction; provided, however, that if the payment of the Purchase Price, etc. from the successful bidder to the Company is delayed, the Company may delay its payment to the consignor until the Company confirms payment from the successful bidder. In case of such delay in payment from the Company to the consignor, the consignor shall not demand any interest or compensation for damage from the Company.
Chapter VI Other Miscellaneous Provisions
32?Amendment to Rules
The Company may amend any of these Conditions of Sale without notice. Such amendment shall be made orally or in writing (including within the catalogue etc.) by the auctioneer by the date of the auction, or by the posting of a notice of amendment at the auction site or pre-auction viewing, and shall become effective immediately.
33?Scope of Responsibilities
(1)If the terms described in these Conditions of Sale provide that the Company assumes no responsibility, neither the Company nor Mallet International shall be obliged to compensate for damages for any reason.
(2)Neither the Company nor Mallet International shall be obliged to compensate for damages if such damages are caused due to any unexpected contingency such as a natural disaster, act of providence, war or civil war.
(3)If the Company is responsible for storage of the purchased property for a successful bidder and the purchased property disappears or is lost, stolen, damaged, deteriorated, defaced, or worn by the willfulness or negligence of the Company and the provisions of the preceding paragraphs do not apply, the Company shall comply with the following provisions in relation with the successful bidder:
i)If any purchased property disappears or is lost, stolen, damaged, materially deteriorated, defaced, or worn, the sales agreement between the Company and the successful bidder shall be terminated and the successful bidder shall be exempted from payment of the Purchase Price. If the Company has already received payment of the Purchase Price in such case, the Company shall return it to the successful bidder free of interest.
ii)If the damage, deterioration, defacement, or wear of the property is not deemed to be material, the Company shall subtract the portion of the damage calculated as equivalent to such damage, deterioration, defacement, or wear from the Purchase Price.
iii)The successful bidder shall be responsible for verifying whether or not any damage, deterioration, defacement or wear exists, the degree thereof, and the calculated amount of the damage.
iv)The Company shall not be responsible for any loss, damage, disappearance, deterioration, defacement, wear, etc. of any accessories which do not essentially relate to the evaluation of the relevant purchased property (such as frames, mountings, glass, acrylic, and outer cases) unless such damage is caused by the willfulness or gross negligence of the Company.
v)The amount of compensation for damages paid by the Company pursuant to the provisions hereof shall be limited to the extent of insurance money paid under the contract of insurance against the loss made between the Company and any nonlife insurer.
(4)If Mallet International has an obligation to keep the purchased property for the Overseas Buyer, the provision of the preceding paragraph shall apply by changing the wordings of the "Company" to "Mallet International", the "successful bidder" to the "Overseas Buyer", "Purchase Price" to "Overseas Purchase Price" and the "sales agreement" to the "Entrustment and Purchase Agreement" respectively.
(5)Neither the Company nor Mallet International shall be obliged to compensate for damages other than those provided for in each item of paragraph (3) of this Article, unless such damages are caused by willfulness or gross negligence. Even if such damages are caused by willfulness or gross negligence, the scope of compensation for damages shall be limited to ordinary damages and the scope predictable at the time of occurrence of such willfulness or gross negligence.
34?Prohibition of Assignment of Obligations
Successful bidders, Overseas Buyers, consignors and any other related parties may not transfer, assign or offer as security their rights or positions with respect to the Company or Mallet International under these Conditions of Sale to a third party.
35?Governing Law
These Conditions of Sale shall be governed by and construed in accordance with the laws of Japan, and any matter not stipulated herein shall be settled in accordance with the laws of Japan.
36?Jurisdiction
With respect to any and all disputes arising out of these Conditions of Sale, the parties hereto shall submit to the exclusive jurisdiction of the Tokyo District Court or the Tokyo Summary Court of Japan.
