STANDARD TERMS AND CONDITIONS
STANDARD TERMS AND CONDITIONS OF BUSINESS
5th Avenue Auctioneers carries on business as fine art auctioneers and consultants. As auctioneers, 5th Avenue Auctioneers acts as agent of the seller of a lot. The contractual relationship of 5th Avenue Auctioneers with prospective buyers and sellers is governed by (i) the conditions set out below (ii) any additional or special terms and conditions that 5th Avenue Auctioneers may impose (whether in the form of notices displayed at the premises at which any auction is conducted or announced by the auctioneer prior to or during any auction and whether in respect of any specific lot or in general) and (iii) such other terms and conditions as may be set out in any relevant catalogue (collectively the "general conditions of business').
1 DEFINITIONS
In these general conditions of business, headnotes are for convenience only and shall not be used in their interpretation, any expression which denotes any gender shall include the other genders, any expression which denotes the singular shall include the plural (and vice versa) any expression which denotes a natural person shall include a juristic person (and vice versa) and the following terms shall have the following meanings :
1.1 "auction" means any private treaty or auction sale at which a lot is offered for sale by 5th Avenue Auctioneers;
1.2 "auctioneer" means the representative of 5th Avenue Auctioneers conducting an auction;
1.3 "bidder" means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, including the buyer of that lot;
1.4 "buyer" means the bidder who makes the bid or offer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot and (where the buyer is an agent acting for a principal) the buyer and the buyer's principal jointly and severally;
1.5 "buyer's premium" means the premium payable by the buyer of a lot to 5th Avenue Auctioneers on the sale of that lot, calculated on the hammer price of that lot at the relevant current rates;
1.6 "catalogue" means any advertisement, brochure, estimate, price list and other publication (in whatever medium, electronically or otherwise) published by 5th Avenue Auctioneers in respect of any auction;
1.7 "current rates" means 5th Avenue Auctioneers' current rates of commission, premiums and other amounts payable to 5th Avenue Auctioneers for the time being, together with VAT thereon (if any) all as published by 5th Avenue Auctioneers (whether in a catalogue or otherwise) or as agreed between a prospective buyer or seller (as the case may be) and 5th Avenue Auctioneers;
1.8 "forgery" means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source, which is not shown to be such in the description in the catalogue and which at the date of the sale had a value materially less than it would have had if it had been in accordance with that description and includes any misrepresentation made with the intention of deceiving as to authorship, origin, ate, age, period, culture or source;
1.9 "hammer price" means the bid or offer made by the buyer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, together with VAT thereon (if any);
1.10 "lot" means any item or items to be offered for sale by 5th Avenue Auctioneers at an auction;
1.11 "prime rate" means the publicity quoted base rate of interest (percent, per annum, compounded monthly in arrear and calculated on a 365 day year, irrespective of whether or not the year is a leap year) from time to time published by the Standard Bank of SA Ltd., or its successor-in-title, as being its prime overdraft rate, as certified by any manager of such bank, whose appointment, authority and designation need not be proved;
1.12 "private treaty" means the sale of any lot other than by auction sale at a price privately agreed on by the buyer and seller;
1.13 "purchase price" means the hammer price of any lot at a sale thereof, plus the applicable buyer's premium for that lot, plus all recoverable expenses for which the buyer is liable in respect of that lot;
1.14 "recoverable expenses" includes all fees, taxes (including VAT) charges and expenses incurred by 5th Avenue Auctioneers in relation to any lot that 5th Avenue Auctioneers is entitled to recover from a buyer or seller;
1.15 "reserve" means the confidential minimum hammer price (if any) at which a lot may be sold at an auction as agreed between the seller of that lot and 5th Avenue Auctioneers;
1.16 "sale proceeds" means the amount due by 5th Avenue Auctioneers to the seller of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable seller's commission for that lot, less all recoverable expenses for which the seller is liable tin respect of that lot and any other amounts due to 5th Avenue Auctioneers by the seller in whatever capacity and howsoever arising;
1.17 "sale" means the sale of any lot at an auction, whether done by private treaty or auction sale and "sell" and "sold" shall have corresponding meanings;
1.18 "seller" means the person named as the seller of any lot, being the person that offers the lot for sale;
1.19 "seller's commission" means the commission payable by the seller to 5th Avenue Auctioneers on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate; and
1.20 "VAT" means value added tax levied in terms of the Value Added Tax Act, 1991.
2 CONDITIONS MAINLY CONCERNING BUYERS
2.1 The buyer
2.1.1 Any dispute of whatever nature about any bid or about the identity of the buyer (including without limitation any dispute about the validity of any bid, or whether a bid has been made, or any dispute between two or more bidders or between the auctioneer and one or more bidders) shall be determined at the auctioneer's absolute discretion.
2.1.2 Every bidder shall be deemed to act as principal unless, prior to the commencement of any auction, 5th Avenue Auctioneers provides a written acknowledgement that a particular bidder is acting on behalf of a third party.
2.1.3 All bidders wishing to make bids or offers in respect of any lot must complete a registration form prior to that lot being offered for sale, which registration form will include an acknowledgement by the bidder that he is acquainted with and bound by these general conditions of business. Bidders shall be personally liable for their bids and offers made during any auction and shall be jointly and severally liable with their principals if acting as agent.
2.1.4 Bidders are advised to attend any auction at which a lot is to be sold by auction sale, but 5th Avenue Auctioneers will endeavour to execute absentee written bids and/or telephone bids, provided they are, in 5th Avenue Auctioneers' absolute discretion, received in sufficient time and in legible form. When bids are placed by telephone before an auction they are accepted at the sender's risk and must, if so requested by 5th Avenue Auctioneers, be confirmed in writing to 5th Avenue Auctioneers before commencement of the auction. Persons wishing to bid by telephone during the course of an auction must make proper arrangement with 5th Avenue Auctioneers in connection with such telephonic bids at least twenty hours before the commencement of the auction. As telephone bids cannot be entirely free from risk of communication breakdown, 5th Avenue Auctioneers will not be responsible for loses arising from missed bids. Telephone bidding may be recorded and all bidders consent to such recording.
2.2 Examination of lots
2.2.1 It is the responsibility of all prospective buyers to examine and satisfy themselves as to the condition of each lot prior to the auction and that the lot matches any oral or written description provided by the seller and/or 5th Avenue Auctioneers. All illustrations of a lot in any catalogue are intended merely as guidance for bidders and do not provide definitive information as to colours, patterns or damage to any lot.
2.2.2 5th Avenue Auctioneers shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise) unless 5th Avenue Auctioneers, its employees or agents, engaged in intentional misleading or deceptive conduct.
2.2.3 In bidding for any lot, all bidders confirm that they have not been induced to make any bid or offer by any representation of the seller of 5th Avenue Auctioneers.
2.3 Exclusions and limitations of liability to buyers
2.3.1 If a lot sold to a buyer proves to be a forgery (which will only be the case if an expert appointed by 5th Avenue Auctioneers for such purpose confirms same in writing) the buyer may (as his sole remedy hereunder or at law) return the lot to 5th Avenue Auctioneers within thirty days of the date of the sale of that lot in the same condition in which it was as at the date of sale, together with a written statement by the buyer detailing the defects to the lot, the date of the sale and the number of the lot. Should 5th Avenue Auctioneers be satisfied in its absolute discretion that the lot is a forgery and that the buyer is capable of transferring good and marketable title to the lot to a third party purchaser thereof, free from any encumbrances and other third party claims, the sale of that lot shall be set aside and the hammer price of that lot shall be refunded to the buyer, provided that the buyer shall have no rights against 5th Avenue Auctioneers (whether under these general conditions of business, at law or otherwise) if :
2.3.1.1 the only method of establishing that the lot was a forgery was by means of a scientific process not generally accepted for use until after publication of the catalogue in which that lot was identified for purposes of the auction at which it was sold or by means of a process which was impracticable and/or unreasonably expensive and/or could have caused damage to the lot;
2.3.1.2 the description of the lot in the catalogue in which that lot was identified for purposes of the auction at which it was old was in accordance with the then generally accepted opinion of scholars and experts or fairly indicated that there was conflict of such opinion;
2.3.1.3 a buyer's claim (whether in contract, delict or otherwise) shall always be limited to an amount equal to the hammer price of the lot;
2.3.1.4 the benefits of this condition shall not be transferable by the buyer of any lot to a third party and shall always rest exclusively with the buyer.
2.3.2 neither 5th Avenue Auctioneers nor the seller :
2.3.2.1 shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided in a catalogue or otherwise) provided to bidders, or for any acts or omissions in connection with the conduct of any auction or for any matter relating to the sale of any lot, including when caused by the negligence of the seller, 5th Avenue Auctioneers, their respective employees and/or agents;
2.3.2.2 gives any guarantee or warranty to bidders other than those expressly set out in these general conditions of business (if any) and any implied conditions, guarantees and warranties are excluded;
2.3.3 Without prejudice to any other provision of these general conditions of business, any claim against 5th Avenue Auctioneers and/or the seller of a lot by a bidder shall be limited to the hammer price of the relevant lot. Neither 5th Avenue Auctioneers nor the seller shall be liable for any indirect or consequential losses.
2.3.4 A purchased lot shall be at the buyer's risk in all respects from the fall of the auctioneer's hammer, whether or not payment has been made and neither 5th Avenue Auctioneers nor the seller shall thereafter be liable for and the buyer indemnifies 5th Avenue Auctioneers against any loss or damage of any kind, including when caused by the negligence of 5th Avenue Auctioneers and/or its employees or agents.
2.3.5 All buyers are advised to arrange for their own insurance cover for purchased lots effective from the date after the date of sale for purposes of protecting their interests as 5th Avenue Auctioneers cannot warrant that the seller has insured its interests in the lot or that 5th Avenue Auctioneers' insurance cover will extend to all risks.
2.3.6 5th Avenue Auctioneers does not accept any responsibility for lots damaged by insect infestation, changes in atmospheric conditions or other conditions outside its control and shall not be liable for damage to glass or picture frames.
2.4 Import, export and copyright restrictions
Save as expressly set out in 3.3, 5th Avenue Auctioneers and the seller make no representation or warranties as to whether any lot is subject to export, import or copyright restrictions. It is the buyer's sole responsibility to obtain all approvals, licences, consents, permit and clearances that may be or become required by law for the sale and delivery of any lot to the buyer.
2.5 Conduct of the auction
2.5.1 The auctioneer has the absolute discretion to withdraw or re-offer lots for sale, to accept and refuse bids and/or to re-open the bidding on any lots should he believe there may be a dispute of whatever nature (including, without limitation, a dispute about the validity of any bid or whether a bid has been made and whether between two or more bidders or between the auctioneer and any one or more bidders) or error of whatever nature, and may further take such other action as he in his absolute discretion deems necessary or appropriate. The auctioneer shall commence and advance the bidding or offers for any lot in such increments as he considers appropriate.
2.5.2 The auctioneer shall be entitled to place bids on any lot on the seller's behalf up to the reserve, where applicable.
2.5.3 The contract between the buyer and the seller of any lot shall be deemed to be concluded on the striking of the auctioneer's hammer at the hammer price finally accepted by the auctioneer (after determination of any dispute accepted by the auctioneer (after determination of any dispute that may exist). 5th Avenue Auctioneers is not a party to the contract of sale and shall not be liable for any breach of that contract by either the seller or the buyer.
2.6 Payment and collection
2.6.1 A buyer's premium, calculated at the applicable current rate of the hammer price, shall be payable by the buyer to 5th Avenue Auctioneers in respect of the sale of each lot. The buyer acknowledges that 5th Avenue Auctioneers, when acting as agent for the seller of any lot, may also receive a seller's commission and/or other fees for or in respect of that lot.
2.6.2 The buyer shall pay 5th Avenue Auctioneers the purchase price immediately after a lot is sold and shall provide 5th Avenue Auctioneers with details of his name and address and, if so requested, proof of identity and any other information that 5th Avenue Auctioneers may require.
2.6.3 Unless otherwise agreed in advance, the buyer shall make full payment of all amounts due by the buyer to 5th Avenue Auctioneers (including the purchase price of each lot bought by that buyer) on the date of sale (or on such other date as 5th Avenue Auctioneers and the buyer may agree upon in writing) in cash, electronic funds transfer or such other payment method as 5th Avenue Auctioneers may be willing to accept. Any cheque and/or credit card payments must be arranged with 5th Avenue Auctioneers prior to commencement of the auction. All credit card purchases are to be settle din full on the date of sale.
2.6.4 Ownership in lot shall not pass to the buyer thereof until 5th Avenue Auctioneers has received settlement of the full purchase price of that lot in cleared funds. 5th Avenue Auctioneers shall not release a lot to the buyer prior to full payment thereof. However, should 5th Avenue Auctioneers agree to release a lot to the buyer prior to payment of the purchase price in full, ownership of such lot shall not pass to the buyer, nor shall the buyer's obligations to pay the purchase price be impacted until such receipt by 5th Avenue Auctioneers of the full purchase price in cleared funds.
2.6.5 The refusal of any approval, licence, consent, permit or clearance as required by law shall not affect the buyer's obligation to pay for the lot.
2.6.6 Any payments made by a buyer to 5th Avenue Auctioneers may be applied by 5th Avenue Auctioneers towards any sums owing by the buyer to 5th Avenue Auctioneers on any account whatsoever and without regard to any directions of the buyer or his agent. The buyer shall be and remain responsible for any removal, storage or other charges for any lot and must, at his own expense, ensure that the lot purchased is removed immediately after the auction but not until payment of the total amount due to 5th Avenue Auctioneers. All risk of loss or damage to the purchased lot shall be borne by the buyer from the moment when the buyer's bid is accepted by 5th Avenue Auctioneers in the manner referred to above. Neither 5th Avenue Auctioneers nor its servants or agents shall accordingly be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, from date of the sale of the lot, whilst the lot is in their possession or control.
2.6.7 All packaging and handling of lots is at the buyer's risk and expense, will have to be attended to by the buyer and 5th Avenue Auctioneers shall not be liable for any acts or omissions of any packers or shippers.
2.6.8 If the sale of any lot is rescinded, set aside or cancelled by an action of the buyer and 5th Avenue Auctioneers has accounted to the seller for the sale proceeds, the seller shall immediately refund the full sale proceed to 5th Avenue Auctioneers who will in turn refund the purchase price to the buyer.
2.7 Remedies for non-payment or failure to collect
Without prejudice to any rights that the seller may have, if any lot is not paid for in full or removed in accordance with the conditions of 2.6 above, or if there is any other breach of these general conditions of business by the buyer, 5th Avenue Auctioneers as agent for the seller shall, at its absolute discretion and without limiting any other rights or remedies that may be available to it or the seller hereunder or at law, be entitled to exercise one or more of the following remedies :
2.7.1 to remove, store and insure the lot at its premises or elsewhere and at the buyer's sole risk and expense;
2.7.2 to rescind the sale of that or any other lots sold to the buyer at the same or any other auction;
2.7.3 to set off any amounts owed to the buyer by 5th Avenue Auctioneers against any amounts owed to 5th Avenue Auctioneers by the buyer for the lot;
2.7.4 to reject future bids and offers on any lot from the buyer;
2.7.5 to proceed against the buyer for damages;
2.7.6 to resell the lot or cause it to be resold by public auction or private treaty, with estimates and reserves at 5th Avenue Auctioneers' sole discretion, in which event the buyer shall be liable for any shortfall between the original purchase price and the amount received on the resale of the lot, including all expenses incurred by 5th Avenue Auctioneers and the seller in such resale;
2.7.7 to exercise a lien over any of the buyer's property in 5th Avenue Auctioneers' possession, applying their sale proceeds to any amounts owed by the buyer to 5th Avenue Auctioneers;
2.7.8 to retain that or any other lots sold to the buyer at the same time or at any other auction and to release such lots only after payment of the total amount due;
2.7.9 to disclose the buyer's details to the seller to enable the seller to commence legal proceedings;
2.7.10 to commence legal proceedings;
2.7.11 to charge interest at a rate not exceeding the prime rate plus 3% per month on the total amount due to the extent that it remains unpaid after the date of the auction;
2.7.12 if the lot is paid for in full but remains uncollected after thirty days of the auction, following seven days written notice to the buyer, to resell the lot by auction or private treaty, with estimates and reserves at 5th Avenue Auctioneers' sole discretion. The sale proceeds of such lot if so resold, less all recoverable expenses, will be forfeited unless collected by the buyer within three months of the original auction.
3 CONDITIONS MAINLY CONCERNING SELLERS
3.1 5th Avenue Auctioneers' powers
3.1.1 The seller irrevocably instructs 5th Avenue Auctioneers to offer for sale at an auction all objects submitted for sale by the seller and received and accepted by 5th Avenue Auctioneers and to sell the same to the relevant buyer of the lot of which those objects form part, provided that the bid or offer accepted from the buyer is equal to or higher than the reserve (if any) on that lot (subject always to 3.1.3) all on the basis set out in these general conditions of business. The seller further irrevocably permits 5th Avenue Auctioneers to bid for any lot of which any of these objects form part as agent for one or more intending buyers, and warrants that the object submitted in terms hereof is a genuine object and is not a forgery in any manner.
3.1.2 5th Avenue Auctioneers are authorised to retain any objects not sold on auction for a period of seven days after the auction for the possible sale of such objects by 5th Avenue Auctioneers by way of private treaty or otherwise pursuant to 3.1.3.
3.1.3 The seller further irrevocably authorises 5th Avenue Auctioneers to offer for sale whether by private treaty or otherwise and without any further instruction or notification to the seller within seven days after the auction, all or any remaining objects submitted for sale by the seller and received and accepted by 5th Avenue Auctioneers in accordance with 3.1.1, which objects were not sold on auction, provided that the bid or offer accepted from that buyer is equal to or higher than the amount that the seller would have received had that lot been sold on auction at the reserve on that lot taking into account the deduction of the applicable seller's commission and recoverable expenses for which the seller is liable
3.1.4 5th Avenue Auctioneers and the auctioneer each has the right, at his absolute discretion, to offer an object referred to above for sale under a lot, to refuse any bid or offer, to divide any lot, to combine two or more lots, to withdraw any lot from an auction, to determine the description of lots (whether in any catalogue or otherwise) to store accepted objects at the auction premises or any other location as he may deem fit and whether or not to seek the opinion of experts.
3.1.5 5th Avenue Auctioneers shall not be under any obligation to disclose the name of the buyer to the seller.
3.2 Estimated selling range and descriptions
3.2.1 Any estimated selling range provided by 5th Avenue Auctioneers to the seller is a mere statement of opinion and should not be relied upon as a true reflection of the hammer price which a lot may achieve at a sale. 5th Avenue Auctioneers reserves the right to revise the estimated selling range at any time.
3.2.2 The seller acknowledges that 5th Avenue Auctioneers is entitled to rely on the accuracy of the description of a lot as provided by or on behalf of the seller.
3.2.3 5th Avenue Auctioneers shall not be liable for any error, misstatement or omission in the description of a lot (whether in any cataloque or otherwise) unless 5th Avenue Auctioneers, its employees or agents, engaged in intentional misleading or deceptive conduct
3.3 Warranties of the seller
3.3.1 The seller warrants to 5th Avenue Auctioneers and to the buyer that :
3.3.1.1 he is the true owner of all objects submitted for sale and/or is properly authorised by the true owner to do so and that he is able to transfer good and marketable title to all such objects, free from any encumbrances and other third party claims, to the buyer of the lot of which those objects form part;
3.3.1.2 he has complied with all requirements, legal or otherwise, in relation to any export or import of the lot, if applicable, and has notified 5th Avenue Auctioneers in writing of any failure by third parties to comply with such requirements in the past;
3.3.1.3 the lot and any written provenance given by the seller are authentic;
3.3.1.4 the lot is fit for its purpose and safe if used for the purpose for which it was designed and is free from any defect not obvious on external inspection;
3.3.1.5 to the extent that the seller required any approval, licence, consent, permit or clearance by law to be in possession of any lot or for the sale of any lot, he is in possession of a valid approval, licence, consent, permit and clearance;
3.3.2 Notwithstanding any other provision of these general conditions of business, none of the seller, 5th Avenue Auctioneers, its servants or agents is responsible for errors of description or for the authenticity of any lot and no warranty whatever is given by 5th Avenue Auctioneers, its servants or agent or any seller to any buyer in respect of any lot (save insofar as the seller is concerned as set out in 3.3.1) and all express or implied conditions or warranties are hereby excluded.
3.3.3 The seller of any object forming part of a lot not held by 5th Avenue Auctioneers at the auction premises warrants and undertakes to 5th Avenue Auctioneers and the buyer that the relevant object will be available and in a deliverable state on demand to the buyer.
3.3.4 The seller agrees to indemnify and keep indemnified 5th Avenue Auctioneers and the buyer against any loss or damage suffered by either in consequence of any breach of any warranty in these general conditions of business.
3.4 Commission and expenses
3.4.1 Seller's commission, calculated at the applicable current rate of the hammer price, shall be payable by the seller to 5th Avenue Auctioneers in respect of the sale of each lot comprising one or more objects submitted by the seller for sale. The seller acknowledges that 5th Avenue Auctioneers may also receive a buyer's premium and other fees for or in respect of that lot. Without derogating from the seller's obligation to pay the seller's commission and any recoverable expenses for which the seller is liable, the seller irrevocably authorises 5th Avenue Auctioneers to deduct from the hammer price of any lot the seller's commission and all such recoverable expenses for which the seller is liable.
3.4.2 5th Avenue Auctioneers may deduct and retain the seller's commission and the recoverable expenses for which the seller is liable from the amount paid by the buyer for the lot as soon as the purchase price or part of it, is received and prior to the sale proceeds being paid to the seller.
3.5 Reserve
3.5.1 All lots will be sold without reserve or minimum price unless a reserve has been placed on a lot, in which event such lto will be offered fro sale subject to the reserve. A reserve shall only be placed on a lot if agreed in writing between the seller and 5th Avenue Auctioneers prior to the auction. A reserve, once placed on a lot, may not be changed by the seller without the prior written consent of 5th Avenue Auctioneers. Should 5th Avenue Auctioneers consent to an increase of the reserve on a lot, 5th Avenue Auctioneers reserves the right to charge the seller an additional offer fee as the object may not be sold on auction as a result of the increased reserve.
3.5.2 Where a reserve as been placed on a lot, only the auctioneer may bid on behalf of the seller.
3.5.3 Where a reserve has been placed on a lot and the auctioneer is of the opinion that the seller or any person acting as agent of the seller may have bid on the lot, the auctioneer may knock down the lot to the seller without observing the reserve and the seller shall pay to 5th Avenue Auctioneers the buyer's premium and all expenses for which the buyer is liable in addition to the seller's commission and all expenses for which the seller is liable.
3.5.4 Should no reserve have been placed on a lot, 5th Avenue Auctioneers shall not be liable if the purchase price of the lot is less than the estimated selling range.
3.6 Insurance
3.6.1 Unless 5th Avenue Auctioneers and the seller have otherwise agreed in writing, 5th Avenue Auctioneers will insure all objects, with the exception of motor vehicles, consigned to it or put under its control for sale and may, at its discretion, insure property placed under its control for any other purpose for as long as such objects or property remain at 5th Avenue Auctioneers' premises or in any other storage depot chosen by them.
3.6.2 The insurance referred to above shall be arranged at the expense of the seller and will be for the amount estimated by 5th Avenue Auctioneers to be the mid-range of the estimated selling price as established by 5th Avenue Auctioneers (or such other value agreed with the seller) and shall subsist until whichever is the earlier of the ownership of the property passing from the seller or the seller or consignor becoming bound to collect the property. The sum for which the property is insured by 5th Avenue Auctioneers shall never be construed as a warranty of 5th Avenue Auctioneers as to the value of the property.
3.6.3 If any payment is made to 5th Avenue Auctioneers under the said insurance, in the event of loss or damage to any object, 5th Avenue Auctioneers shall pay such amount to the seller after deduction of the seller's commission and expenses incurred by them.
3.6.4 In the event the seller instructs 5th Avenue Auctioneers not to insure a lot or property submitted for sale, it shall at all times remain at risk of the seller. In such an event, the seller undertakes to :
3.6.4.1 indemnify 5th Avenue Auctioneers against all claims made or proceedings brought against them in respect of damage or loss to the lot of whatsoever nature and howsoever arising and in all circumstances, even when negligence is alleged or proved;
3.6.4.2 reimburse 5th Avenue Auctioneers on demand for all costs, payments or expenses made or incurred in connection herewith. All payment made by 5th Avenue Auctioneers in connection with such loss, damage, payments, costs or expenses shall be binding on the seller as conclusive evidence thereof that 5th Avenue Auctioneers was liable to make such payment;
3.6.4.3 notify any insurer of the existence of the indemnity contained herein.
3.7 Payments for the proceeds of sale
3.7.1 5th Avenue Auctioneers shall only be liable to remit the sale proceeds of a lot to the seller thereof on the later of thirty days after the date of the sale of that lot or seven days after the date on which the full purchase price for the lot has been received by 5th Avenue Auctioneers in cleared funds.
3.7.2 If the buyer of a lot fails to pay the total amount due to 5th Avenue Auctioneers within twenty eight days after the date of sale of that lot, 5th Avenue Auctioneers shall give notice of this to the seller of that lot and shall request the seller's written instructions as to the appropriate course of action to be followed. Should 5th Avenue Auctioneers deem it so appropriate, 5th Avenue Auctioneers will assist the seller to recover the total amount due from the buyer. Should no written instructions be forthcoming from the seller within seven days after request, the seller hereby authorises 5th Avenue Auctioneers at 5th Avenue Auctioneers' absolute discretion but at the seller's expense :
3.7.2.1 to agree terms for payment of the total outstanding amount;
3.7.2.2 to remove, store and insure the lot sold;
3.7.2.3 to settle any claim by or against the buyer on such terms as 5th Avenue Auctioneers in their absolute discretion deem fit;
3.7.2.4 to take such steps as 5th Avenue Auctioneers in their absolute discretion consider necessary to collect monies due to the seller from the buyer;
3.7.2.5 if necessary, to rescind the sale and refund any monies to the buyer.
3.7.3 Should 5th Avenue Auctioneers pay an amount equal to the sale proceeds to the seller before having received full payment of the purchase price from the buyer, ownership of the lot shall pass to 5th Avenue Auctioneers.
3.7.4 If the sale of any lot is rescinded, set aside or cancelled by an action of the buyer and 5th Avenue Auctioneers has accounted to the seller for the sale proceeds, the seller shall immediately refund the full sale proceeds to 5th Avenue Auctioneers, who will in turn refund the purchase price to the buyer and make the lot available to the seller for collection. Any annulment, rescission, cancellation or nullification of the sale shall not affect the seller's obligation to pay the commission to 5th Avenue Auctioneers and/or reimburse any expenses incurred by 5th Avenue Auctioneers.
3.8 Withdrawal fees
3.8.1 A seller may only withdraw a lot from being offered for sale by written notification to 5th Avenue Auctioneers which is received by 5th Avenue Auctioneers at least seventy two hours prior to the commencement of the auction at which the lot is to be offered for sale.
3.8.2 Upon receipt of proper notification of withdrawal as envisaged above, 5th Avenue Auctioneers reserves the right to charge the full seller's commission and buyers premium to the seller as a withdrawal fee, both calculated on the latest middle estimate of the selling price of the property withdrawn, together with VAT and all expenses incurred in relation to the property.
3.8.3 If a lot is withdrawn, the seller shall arrange for the collection and removal of the lot at the seller's expense within three days after date of the withdrawal, provided the seller has paid the recoverable expenses and applicable withdrawal fee to 5th Avenue Auctioneers.
3.9 Photography and illustration
5th Avenue Auctioneers shall have the full and absolute right to illustrate, photograph or otherwise reproduce images of any lot submitted by the seller for sale, whether or not in conjunction with the sale and to use such photographs and illustrations at any time and in their sole and absolute discretion. The copyright of all photographs taken and illustrations made of any lot by 5th Avenue Auctioneers shall be the sole and absolute property of 5th Avenue Auctioneers and 5th Avenue Auctioneers undertakes to abide by all copyright applicable to any and all lots submitted for sale.
3.10 Unsold lots
3.10.1 5th Avenue Auctioneers are authorised to retain any objects not sold on auction for a period of seven days after the auction and may proceed to sell any such unsold lot during this period, be it by way of private treaty or otherwise, without any further instruction or notification to the seller in terms of 3.1.
3.10.2 Where any lot remains unsold, 5th Avenue Auctioneers shall notify the seller accordingly and the seller shall collect the lot at the seller's expense within seven days after dispatch by 5th Avenue Auctioneers of a notice to the effect that the lot has not been sold.
3.10.3 In these circumstances, the seller must make arrangements either to re-offer the lot for sale or to collect and pay all recoverable expenses and other amounts for which the seller is liable.
3.10.4 Should the seller fail to collect the lot within seven days of notification, the seller shall in addition be responsible for all removal, storage and insurance expenses.
3.10.5 Should the seller fail to collect the lot within two months of date of the notification referred to above, 5th Avenue Auctioneers shall be authorised to sell the lot by private treaty or public auction, on such terms and conditions as they think fit, without reserve and to deduct from the hammer price all sums owing to 5th Avenue Auctioneers, including (without limitation) storage, removal, insurance expenses, the expenses of both auctions, reduced commission in respect of the auction as well as commission on the sale and all other reasonable expenses, prior to remitting the balance to the seller or, in the event he cannot be located, placing it into a bank account in the name of 5th Avenue Auctioneers for and on behalf of the seller.
4 GENERAL PROVISIONS
4.1 5th Avenue Auctioneers use information supplied by bidders or sellers or otherwise lawfully obtained for the provision of auction related services, client's administration, marketing and otherwise as required by law.
4.2 The bidder and seller agree to the processing of their personal information and to the disclosure of such information to third parties worldwide for the purposes outlined in 4.1 above.
4.3 any representation or statement by 5th Avenue Auctioneers in any catalogue as to authorship, genuiness, origin, date, providence, age, condition or estimated selling price is a statement of opinion. Every person interested should rely on his own judgment as to such matters and neither 5th Avenue Auctioneers nor its agents or servants are responsible for the correctness of such opinions, subject to 2.3.1.
4.4 5th Avenue Auctioneers will have the right, at its sole and absolute discretion, to refuse entry to its premises or attendance at its auction by any person.
4.5 These general conditions of business, every auction and all matters concerned therewith will be governed by an construed in accordance with the laws of South Africa and the buyer submits to the non-exclusive jurisdiction of the south African Courts.
4.6 If any of these general conditions of business are held to be unenforceable, the remaining parts shall remain in force and effect.
4.7 The non-exercise of or delay in exercising any right or power of a party does not operate as a waiver of that right or power, nor does any single exe4rcise of a right or power preclude any other or further exercise of it or the exercise of any other right or power. A right or power may only be waived in writing, signed by the party to be bound by the waiver.
4.8 These general conditions of business constitute the entire agreement between the parties on the subject matter.
4.9 Neither party shall be liable for any loss or damage, or be deemed to be in breach of these conditions, if its failure to perform or failure to cure any of its respective obligations hereunder result from any event or circumstance beyond its reasonable control. The party interfered with shall, give the other party prompt written notice of any force majeure event. If notice is provided the time for performance or cure shall be extended for a period equivalent to the duration of the force majeure event or circumstance described in such notice, except that any cause shall not excuse payment of any sums owed to 5th Avenue Auctioneers to, during or after such force majeure event.
4.10 Any notice by 5th Avenue Auctioneers to a seller, consigner, respective bidder or buyer may be sent by 5th Avenue Auctioneers to the latest address as provided to 5th Avenue Auctioneers by the seller consigner, respective bidder or buyer.
4.11 Any notice to be addressed in terms of 4.10 may be given by airmail or hand-mail or sent by prepaid post and if so given will be deemed to have been received by the addressee seven days after posting or by facsimile and if so given will be deemed to have been duly received by the addressee within one working day from transmission or by e-mail and if so given will be deemed to have been duly received by the addressee within twenty four hours from transmission. Any indemnity under these conditions will extend to all proceedings, actions, costs, expenses, claims and demand whatever incurred or suffered by the person entitled to the benefits of the indemnity. 5th Avenue Auctioneers declares itself to be a trustee for its relevant agents and servants of the benefit of every indemnity under these conditions to the extent that such indemnity is expressed to be for the benefit of its agents and servants.
