Transaction Agreement
Transaction Agreement for Art (Taipei)
The following provisions are entered into by and between Ravenel Ltd., as the auctioneer, (hereinafter referred to as the "Company"),and the Seller (hereinafter referred to as the "Seller"). This Agreement is also entered into by and between the Company as the agent of the Seller and the Buyer (hereinafter the "Buyer"). The Prospective Buyer, the Buyer and the Seller must carefully review and completely agree all provisions hereunder and any revisions from time to time. The Prospective Buyer, the Buyer should pay special attention to Article 1, Section 5 which provides limitations as to the legal responsibilities of the Company.
Article 1. Definition
Some of the phrases commonly seen herein are defined as follows:
1. "The Buyer" shall mean highest bidder accepted by the Company.
2. "The Prospective Buyer" shall mean any potential bidder willing to attend the auction sale hosted by the Company.
3. "The Seller" shall mean the Seller who provides the Lot and agrees to appoint the Company as its exclusive agent to sell the Lot at the Auction and participate, and cooperate, in exhibitions prior to the Auction if so required by the Company.
4. "The Lot" shall mean the item delivered to the Company to be sold in an auction, especially the single or multiple pieces of items numbered in the catalogue.
5. "Hammer price" shall mean the highest bid with respect to one particular Lot accepted by the auctioning party.
6. The "Buyer's Premium" shall mean the fee based on a certain percentage of the Hammer price paid to the Company by the Buyer; the percentage shall be as prescribed in Article 2, Section 4a.
7. "The Reserve Price" shall mean the lowest price agreed by the Company and Seller. The Lot cannot be sold at a price lower than such price.
8. "Counterfeit" shall mean the Lot constitutes imitation and the original concept of the imitation and its overall execution result in fraud to cause deception in connection with the author, history, year, age, culture or origin of the Lot, for which the accurate description is not reflected in the catalogue and the value of the Lot on the auction day is far less than the value it should have according to the description in the catalogue. Therefore, no auction item will become a counterfeit as a result of any damage and/or any repairing in any manner (including repaints).
9. "Insured amount" shall mean the value of the insurance purchased for the Lot which the Company considers necessary under its absolute power from time to time (regardless whether such insurance is purchased by the Company).
10. The "Seller Service Fee" shall mean the fee paid to the Company by the Seller.
Article 2. The Buyer
1. The Company as the Agent of the Seller
The Company, shall act as the agent of the Seller. Except otherwise provided, items successfully sold in the auction held by the Company shall be bound by the agreement made by and between the Seller, through the agency of the Company, and the Buyer.
2. Prior to the Auction
a. Authentication
We strongly recommend that the Prospective Buyers conduct their own authentication for the items they are interested in bidding prior to the auction. The Company provides no guarantee to the Buyer including but without limitations whether the Lot is a counterfeit or the authentication of the Lot related certificates.
b. Important Notice
Attention, the Prospective Buyers: As far as possible, the descriptions of auction items will mention obvious defects of the items; however, they do not necessarily include all flaws, defects, or incomplete aspects. The description of the auction items also do not imply or guarantee that the items have not gone through readjustment or repair or allude anything about the current state or storage conditions of the items. Any omission in the catalogue description regarding the current condition or the appraisal of defects in the items by no means represent that those items are in good condition, function normally. We strongly recommend the Prospective Buyers shall personally view the items for which they plan to bid before the auction. Any description in the catalogue or any statement provided by the Company is purely the Company's subjective opinion and not a statement of fact, not for representations or warranties. The Prospective Buyer completely understands and acknowledges that all of the items on auction are being sold in "as is" condition. The Company does not provide any representation or guarantee as to the condition of any of the items.
c. Symbol Key
The following key explains the symbol you may see inside this catalogue.
?Guaranteed Property
The Seller of the Lots with this symbol next to the Lot number has been guaranteed a minimum price from one auction or a series of auctions. This guarantee may be provided by the Company, by a third party or jointly by the Company and a third party. A guarantee may be in the form of an irrevocable bid provided by a third party. Third parties providing or participating in a guarantee may benefit financially if a guaranteed Lot is sold successfully and may incur a loss if the sale is not successful. If third parties providing or participating in a guarantee is the successful bidder for the guaranteed Lot, they should be required to pay the full Buyer's Premium.
d. Catalogue Explanations
Any statement of the author, history, date, year, size, material, ownership, authenticity, origin, condition of preservation or estimated selling price of any of the Lot and certificates thereof shown in the catalogue or the authentication opinion made by the Company, or any other verbal or written statements made separately shall be solely statements of opinions and shall not be deemed the basis for the statements of actual fact. The photographs shown in the catalogue shall serve as reference only and shall not be deemed as the basis for determining the color or tone of any Lots or disclosure of the defects of such item. The estimates of the auction price shall not be deemed the price at which such item will be successfully sold or the statement of the value of the item for other purposes.
Many Lots fail to maintain their perfect condition because of time and other environmental factors. Some of the explanations in the catalogue or the authentication opinions will state defects and/or the repair background of the Lots. Such information is meant for reference only. Missing information in the statements does not mean the Lot has no defects or has not been repaired. Any statement of one particular defect does not mean there is no any other defect.
e. Responsibility of the Buyer
The Buyer is responsible for clarifying and satisfying himself about the condition of the items and any related matters stated in the catalogue descriptions and making his/her own judgment or estimation independently regarding the Lots.
3. In the Auction
a. Estimates
The prices in US dollars or other currencies reproduced in the auction and this catalogue are for reference only. The Buyer is requested to pay by New Taiwan dollars or other foreign currencies in its equivalency based on the exchange rate announced by the Company on the day of auction.
b. Refusal of Admission
The auction is held at the premises of the Company or any location where the Company has control of for the auction. The Company has full discretion to exercise the right to refuse entry to the premises for the auction or to prevent participation in the auction.
c. Registration Prior to the Bidding
Prospective Buyers must fill in and sign the registration forms prior to the bidding and provide personal identification. Prospective Buyers should also note that the Company may request to conduct credit checks against Buyers.
d. The Bidding Deposit
The bidder shall pay the bidding deposit before receiving the bidding number. The Company will announce the amount of the bidding deposit before the auction day. If the bidder fails to pay the bidding deposit in advance, the Company has the right to refuse the bid. If the bidder is not able to purchase any Lot and has no outstanding debts to the Company, the Company will return the bidding deposit to the bidder. If the bidder becomes the Buyer, the Company has the right to transfer the bidding deposit into the payment of the Lot for which transaction is concluded. And the Company will return the balance of the deposit to the Buyer (if any).
e. The Bidder is the Buyer
Unless a written agreement has been made upon registration that the bidder will be the agent who acts on behalf of a third person and such third person is accepted by the Company, the bidder will be deemed as the Buyer who will bear individual legal responsibilities.
f. Commission Bids
The Company will make the proper effort to bid for the Prospective Buyers who instruct us to bid on their behalf by using the provided forms attached to the explanations of the catalogue; however, bid commission instructions must be delivered to the Company prior to the auction. If the Company receives several commission bids for one particular item, with all bid prices being equal and of the highest bid price at the auction, priority shall be given to the Buyer whose bid commission is delivered to the Company first. Commission bids are subject to auction conditions. The situation at the auction may prevent the Company from making the bid as commissioned. This is a free service provided by the Company to the Prospective Buyers pursuant to the provisions prescribed. The Company will not be held legally liable if it fails to make the bid as commissioned. The Prospective Buyers should attend the auction in person if they wish to ensure a successful bid.
g. Bid by Phone
The Company will make proper effort to contact the bidder so he/she can participate in the auction by phone if the Prospective Buyer make arrangements with the Company prior to the auction. However, the Company will bear no responsibilities to the Seller or any prospective Buyer if no contact is made or any failure to participate in the auction by phone under any circumstances.
h. Online Bids via Invaluable
If the bidder cannot attend the auction, it may be possible to bid online via Invaluable for preferred Lots to bear individual buyer's responsibilities. This service is free and confidential. For information about registering to bid via Invaluable, please refer to Ravenel.com. The Bidders using the Invaluable online bidding service are subject to the additional terms and conditions for online bidding via Invaluable, which can be viewed at the website and be revised by the Company from time to time.
i. Exchange Rate Conversion Board
There will be an exchange rate conversion board operating in auctions. Nonetheless, the auction will still be conducted in NT dollars. The exchange rate conversion board is not absolutely reliable and for the reference only. The accuracy of either the Lot numbering shown on the board or the equivalent of the bid price in any foreign currency is not within the control of the Company. The Company will not be responsible for any losses caused by the reliance of the Buyer on the exchange rate conversion board.
j. Recorded Images
There is image projection in some auctions; however, errors may occur during the operation. The Company is not liable for the color accuracy of the reproduced image and whether the projected image corresponds to the item being auctioned.
k. Determining Power of the Auctioneer
The auctioneer has the absolute power to reject any bid, push for bids at his/her discretion, withdraw any auction items, separate or combine two or more auction items, determine the successful bidder, and if there is any error or dispute, re-auction the items. If the auctioneer announces the points for attention before the auction or the bidding, the Prospective Buyers shall pay attention for any announcement as its own responsibility. We recommend the Prospective Buyers using Online Bids Services to log in the system prior to the commencement of the auction to ensure the timely awareness of any notices or announcements made prior to the auction.
l. Successful Bids
Under the discretion of the auctioneer, the fall of the hammer indicates the acceptance of the highest bid price, i.e., the Seller and the Buyer enter into a successful auction agreement on Hammer Price.
4. Following the Auction
a. The Buyer's Premium of Each Lot
1. The Buyer should pay the hammer price and, in addition, the Buyer's Premium to the Company. For hammer price below NT$ 32,000,000 (inclusive), the Buyer's Premium should be calculated at 20% of the hammer price.
2. For hammer price higher than NT$ 32,000,000, total amount of the Buyer's Premium should be that the first NT$ 32,000,000 of the hammer price should be calculated at 20% and the rest of the amount of the hammer price should be calculated at 12% of the hammer price.
b. Taxes
All the payments payable by the Buyer to the Company do not include any commodity or service taxes or any other value added taxes (whether imposed by the Taiwanese government or elsewhere). The Buyer should be responsible for paying any applicable taxes as required by the law.
c. Payment
The Buyer should provide his/her/its true name and permanent address to the Company upon the successful bid. Relevant bank information, including but without limitations the payment account, should also be provided upon the company request. All payments due (including the hammer price, the Buyer's Premium and any freights or other expenses) should be paid within 7 days following the auction date. The aforesaid provision also applies if the Buyer intends to export the Lot and (may) need the export permit.
If the Buyer fails to pay to the Company all the payments due, the Buyer will not acquire the ownership of the Lot even if the Company has delivered such item to the Buyer. If the payment to the Company are made in any currency other than NT dollars, the exchange rate of the payments to the Company should be the exchange rate reported by the Bank of Taiwan to the Company on the auction date and should be based on the certificates issued by the Company according to such exchange rate.
d. Collection of the Lot Sold
Unless otherwise agreed by the Company, the Company will hold temporarily the successfully sold Lots until all payments to the Company are made in full. The Lot will be covered by the insurance of the Company from the auction date for 7 days during the temporary holding period. The insurance coverage will terminate upon earlier collection of such item. The Buyer should be responsible for all risks following expiration of the said 7-day period or the collection (whichever is the earlier).
e. Referral of Packaging or Transportation Companies
The shipping department of the Company may introduce the forwarder, assist in the arrangement of delivery, or purchase particular insurance upon the Buyer's request. The Company will not be held liable for any legal responsibilities in this regard. And the Buyer shall prepay the freight charges. Costs and expenses for shipping and insurance shall be paid in advance.
f. Remedies for Non-Payment or Non-Collection of Items Sold
The Company is entitled to exercise one or more of the following rights or remedies if the Buyer fails to make payment within 7 days following the auction date:
(1) An interest at the annual rate of no higher than 10% plus the base interest rate of Bank of Taiwan will be imposed on all of the payment due if payment is not made within 7 days following the auction date. Besides, we have the right of charging also 1% selling price (including of hammer price and Buyer's Premium) multiplied by the number of delayed days as fine for the default. The payment to be made by the Buyer may offset any payment owed by the Company or its subsidiaries to the Buyer for any other transactions upon the Company's sole decision.
(2) To exercise lien of any items owned by the Buyer and held by the Company for any purpose including but without limitations other transactions. The Company may arrange to sell such items after serving a 14-day notice to the Buyer about his/hers/its non-payment. The proceeds shall make up for the payment due.
(3) If the Buyer owes the Company several payments as a result of different transactions, the payments will set-off any payments due in any particular transaction, regardless of whether the Buyer specifies to setoff such payments.
(4) Refuse the Buyer to make, or to make on behalf of others, bids in any future auctions and/or to require a security deposit from the Buyer before accepting any future bids from him/her/it. If the Buyer fails to make payment within 35 days, the Company is entitled to exercise one or more of the following rights in addition to the aforementioned:
(a)To bring legal proceedings against the Buyer on behalf of the Seller to claim the entire payment due and the legal fees and attorney fees resulting from such proceeding based on a total claim.
(b)Cancel the transaction of Lots bid by the Buyer or any other auction items sold to the Buyer at the same or any other auctions.
(c)To arrange a public or private re-sale of the Lot. If the re-selling price is lower, the difference will be claimed against the Buyer together with any cost incurred as a result of the non-payment by the Buyer.
g. No Collection of the Lot Sold
The Company will arrange for the storage of the Lot if such item sold is not collected within 7 days following the successful auction, regardless of payment. Such storage cost will be borne by the Buyer. Only when the storage, handling, shipping, insurance cost and any other expenses together with any other payments due to the Company are paid in full can the sold Lot be collected.
h. Export Permit
Except where otherwise agreed in writing by the Company, the fact that the Buyer's wishes to apply for an export permit does not affect the Buyer's responsibility to make the payments in 7 days following the auction date; nor does it affect the Company's right to impose interest on delayed payments.
If the Buyer requests that the Company applies for the export permit on his/hers/its behalf, the Company is entitled to collect monies made in connection with such an application and any miscellaneous expenses together with any relevant value added taxes.
If the Buyer makes the payment regardless of the fact that an export permit is needed, the Company is not responsible for returning to the Buyer any interest or other expenses incurred therefrom.
5. The Legal Responsibility of the Company
The Company is responsible for returning payment to the Buyer pursuant to Article 2, Section 6. Otherwise, whether the Buyer, the Company, any employees or agents of the Company will not be held liable for any statements of the author, history, date, year, ownership, authenticity or origin of any auction item or any errors with respect to any explanations and any flaws or defects of any auction item. The Seller, the Company, the employees or the agents of the Company make no guarantee impliedly or explicitly with respect to any auction items. Any warranty of any kind shall not be included herein.
6. Return of Payments for Counterfeits or stolen goods
The transaction will be cancelled and payments made before remit to the Seller will be returned to the Buyer if the Lot of the Company is confirmed to be a counterfeit or stolen goods, or involved in obvious illegality by the professional appraisal party agreed and recognized by the Company in writing. However, if:
a. The catalogue explanations or the notice at the auction distributed on the auction day corresponds to the opinions generally accepted by the academic or professional fields or explicitly indicates it conflicts with the opinions generally accepted by the academic or professional fields.
b. Or the method used to prove that the Lot is a counterfeit or stolen goods is a scientific procedure not generally accepted for use before the publication of the catalogue or a procedure unreasonably expensive on the day of the auction, or impractical, or may cause damage to the Lot; the Company is not liable for the return of any payment under any circumstances. In addition, the Buyer's payment can only be refunded when the following terms are met:
(1) The Buyer must notify the Company in writing within 10 days following the auction day that he/she considers the relevant auction item a counterfeit or stolen goods.
(2) The Buyer must return the Lot to the Company within the following 14 days and the condition of the item must be the same as on the auction day without any damage.
(3) Upon returning the Lot, the Buyer must present evidence as soon as possible to convince the Company that the Lot is a counterfeit or stolen goods (The Company has the final and sole discretion and decision and such decision shall not be objected in this regard). The Buyer may also assign the good ownership of the Lot to the Company, which shall not concern any third party claim. Under no circumstances is it necessary for the Company to pay the Buyer an amount more than what the Buyer pays in connection with the Lot and the Buyer cannot claim interests.
The interests of the warranty cannot be assigned and belong solely to the Buyer who receives the original invoice on which such Buyer's name is recorded from the Company when the Lot is sold. Such Buyers shall remain the owner of the auction Lot and cannot assign any interest of the Lot to any other person. The Company is entitled to ascertain that the Lot is not a counterfeit or stolen goods based on a scientific procedure or any other procedure, regardless of whether such procedure is being used on the day of the auction. If the result of appraising and verifying whether the Lot is a counterfeit or stolen goods by the Company conflicts with the evidence provided by the Buyer, the Company's said result shall prevail over the evidence provided by the Buyer.
Article 3. The Seller
1. The Company as the Agent
The Company acts as the agent of the Seller. The Closing Agreement of the Lot is the agreement by and between the Buyer and the Seller, through the agency of the Company on behalf of the Seller. The Seller shall be responsible to the Buyer for performing the obligations and responsibility of a seller.
2. Expenses
The Seller shall bear costs relating to the following regardless of whether the Lot is sold:
a. Packing of the Lot and shipping to the Company is designated for the auction.
b. Any applicable shipping insurance.
c. The packaging and shipping if the Lot is delivered back to the Seller. If the Lot were imported from overseas, shipping costs and import taxes shall paid by the Seller.
d. Insured under the Company's insurance policy, the insurance premium rate is set out in Article 3, Section 3b.
e. Any applicable custom duties.
f. Catalogue illustrations.
g. Any repairs made to the Lot as per prior agreement with the Seller.
h. Framing and mounting.
i. Authentication made by independent professionals appointed by the Company, which the Company believes to be necessary in preparing the catalogue explanations.
j. Any independent professional opinions appointed by the Company, which the Company deems proper.
k. The storage, loading and unloading and custody of the Lot after the auction.
l. Any marketing and promotional expenses.
3. Insurance Coverage to be Arrange by the Company
a. Unless otherwise agreed by the Company, the Lot will be automatically insured under the Company insurance policy in the amount as deemed appropriate and estimated by the Company. However, the insured amount is not the amount the Company undertakes to be successfully reached during the auction.
b. The Company will collect 1% of the Reserve Price as the insurance fee. If the shipping is arranged by the Company, an additional amount will be collected by the Company from the Seller as the shipping insurance. Such amount varies depending on the individual condition of each auction item. The Company will refer a freight forwarder if necessary. However, in no event shall the Company be not responsible for any legal responsibilities and liabilities incurred therefrom.
c. The Lot will remain insured up to 7 days after the auction date. If the Lot has not been sold, it will be at the Seller's risk upon the expiry of 7 days.
d. We are unable to accept responsibility for damage caused by woodworm or changes in atmospheric conditions, moisture, typhoon, earthquake force majeure or unforeseeable conditions, or any reason not attributable to the Company.
4. Insurance Purchased by the Owner
If the Seller instructs the Company specifically that it is unnecessary to purchase insurance for the Lot, the risks shall be borne entirely by the Seller until the Buyer makes all the payments and the Lot is delivered to the Buyer. The Seller must indemnify the Company, the employees and agents of the Company and the Buyer (if applicable) any claims in connection with the auction against the Company, the employees and agents of the Company and the Buyer, regardless of the cause of such claim without any conditions. The Seller must be responsible and also pay for the expenses incurred as a result of such claim if requested by the Company, the employees and agents of the Company and the Buyer, even if such expenses are made as a result of negligence by the Company, the employees and agents of the Company and the Buyer without proof of legal responsibility. The Seller must inform by himself/herself the underwriter of the Seller the provision herein.
5. Commitments Made by the Seller with Respect to the Lot
The standards for the Company to handle the Lots are provided hereunder. These standards also stipulate and limit the sale relationship between the Seller and Buyer. In the event such standards are incorrect in any aspect, the Company or the Buyer may bring legal actions against the Seller. The Company should base the purchase and handling of auction items on the following undertaking made by the Seller:
a. The Seller is the only legal owner of the Lot and has the unlimited rights to assign his/hers/its ownership in full to the Buyer which should not concern any third party right or claim (including mortgage-free, free from encumbrances and no third party rights or claims case).
b. The Seller complies with all the laws in connection with the import and export of auction items and any other laws and has notified the Company in writing any failure to comply with such rules in the past.
c. The Seller has notified the Company in writing of any major modifications in the Lot to the best of his/hers/its knowledge and any concern the third party has raised with respect to the ownership of the Lot and the condition.
In the event of any inaccuracy of the above a, b and c now or in the future, the Seller must guarantee, if requested, to identify fully the Company and the Buyer all the claims, legal fees, attorney fees or other costs and expenses arising here from, whether caused by the Lot or the auction proceeds.
6. Auction Arrangements
a. The Company has absolute discretion over the description of the auction in the catalogue, display layouts, authentication opinions, location and method of the auction, who will be allowed to bid and the acceptance of the bid price, whether to seek professional opinion and whether to combine or separate the Lots.
b. Any price estimates, whether verbal or written are strictly opinions and shall not serve as a guarantee of the final price for the Lot to be sold.
c. The Seller cannot withdraw the sale of the Lot without obtaining the prior written consent from the Company. The Company reserves the right to withdraw, suspend, or terminate the sale and authorization of the Lots for the following reasons. These reasons include:
(1) The Company is doubtful about the definition or authenticity of the Lot or the accuracy of the statement referred to in Articles 3, Section 5a, b, or c.
(2) Any violations of the Transaction Agreement.
(3) The Company deems it inappropriate to include the Lot in the auction.
d. Withdrawal of Mandate or Authorization
(1) The Seller may not withdraw, suspend or terminate his/her/its mandate for the Lot (s) or the authorization to the Company under this Agreement without prior written consent of the Company.
(2) In the case of such withdrawal, suspending or termination stated in Articles 3, Section 6c, the Seller shall pay the Company an amount equivalent to 40% of the Reserve Price as punitive damages in addition to the compensation for damages or economic loss to the Company.
(3) In case of default or breach of this Agreement, the Company may cancel or terminate this Agreement anytime and the Seller shall also pay all costs and expenses incurred by the Company under this Agreement.
7. Auction Rules
a. The Company will auction the item according to the Reserve Price. The Reserve Price may not be higher than the minimum of the estimates set in the catalogue except otherwise if the Reserve Price agreed is in a currency other than NT dollars and the Reserve Price is higher than the minimum of the estimates caused by the exchange rate fluctuation between the Reserve Price agreement day and the auction day. Under such circumstances, except where otherwise agreed by the Company, the Reserve Price shall be in NT dollars calculated by the exchange rate published on the same date of auction.
b. If the bid price is lower than the Reserve Price, the Company is in no way to be held liable; however, the Company is entitled to auction the item at a price lower than the Reserve Price. If the Company so auctions the item, the Company is responsible to pay the Seller the difference between the Hammer price and the Reserve Price.
c. The Seller may not increase the price with his/her/its own or other third parties' name, nor participate in the bidding of his/her/its commissioned Lot(s) with his/her/its own or other third parties' name, however, the Company is authorized to bid on behalf of the Seller at the price not higher than the Reserve Price.
d. If Seller bid up prices of the commissioned Lot without fair reason on his/her/its own name or other third parties' name, or participate in the bidding on his/her/its own name or other third parties' name and enter into a successful bid, it shall be construed as the conclusion of the auction of the Lot, and the Seller shall also assume the responsibility of the buyer, including but without limitation payment.
8. After the Successful Auction
a. Settlement
Upon the successful auction, the Company will request the Buyer to make full payment no later than within 7 days following the auction date, including the compensation payable by the Buyer. Upon payment by the Buyer, unless the Company receives a notice claiming such auction item is a counterfeit or stolen goods, the Company will remit to the Seller within 35 working days following the successful auction day an amount equal to the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) taking away all the expenses payable by the Seller. In the event the Buyer delays the payment, the Company will remit to the Seller within 7 workdays following the payment in full by the Buyer. As to any reason the company payment to Seller before received payment from the Buyer, the company will acquire the ownership of the Lot. If a Lot is a counterfeit or stolen goods, the company were forced to withdraw the lot from the Buyer, the Seller shall return the entire payment received to the Company without objection.
Unless otherwise instructed by the Seller in writing, the Company will make its payment in NT dollars. If the Seller requests to pay in currencies other than NT dollars, the exchange rate should be according to what the Bank of Taiwan reports and the Company announces on the auction date.
b. Closing of the Transaction and Seller Service Fee
(1) The transaction is closed when the Buyer has paid the Company in full after the auction.
(2) The Seller Service fee which is 10% of the Hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) (taxes included), is payable by the Seller to the Company upon the conclusion of the auctioned Lot.
c. Non-payment by the Buyer
If the Buyer fails to make all the payments due within 7 days following the auction day, the Company is entitled to negotiate special terms in connection with the payments, storage, and insurance on behalf of the Seller and act as deemed necessary by the Company to collect payments payable from the Buyer. Any and all damages, costs, expenses or fees incurred shall be borne by the Seller. However, the Company is not responsible for making payment remittance to the Seller nor for bringing any legal actions on behalf of the Seller. The Company will discuss with the Seller to adopt appropriate actions to claim auction payments from the Buyer.
d. Counterfeits or stolen goods
If the Buyer convinces or make the Company doubt that the Lot is a counterfeit (as defined in Article 1 of the Transaction Agreement) or stolen goods or involved in any illegality within 10 days after the auction date, the Company may decide upon its sole discretion as follows:
(1) If the Buyer does not pay the payable payment in full yet, the Company has the rights to withdraw the transaction.
(2) If the Buyer has paid the payable payment in full, the Company may return the selling price (The Company may deduct the reasonable expenses and fees incurred) received from the Buyer and the Lot will be returned to the Seller or forwarded to the Police for handling. The Seller shall not object to the Company's decision and handling in accordance with this Lot and make any claim or allegation. The Company will notify the Seller of such matter and the Seller shall return to the Company without objection the entire payment received within 3 days of such notification.
In the above circumstances of the Section, the Seller shall pay the Company fees and expenses, all losses, damages or related expenses and fees agreed upon in Article 3, Section 2 in 10 days. In case that the Seller's failure of payment and compensation obligations, the Seller shall pay the interest for delay of the entire payment by the basic lending rate of the Bank of Taiwan (BOT)plus five percent (5%) per annum.
In addition, the Company may decide to offset the Seller's payment payable to the Company from the Company's or other subsidiaries' payments due to the Seller in other transactions. The Company will exercise lien for the latter. Any items belonging to the Seller under control of the Company will be kept as security of the payments to be returned.
e. The Lot Not Successfully Auctioned
(1) Any Lot not successfully auctioned, not included in the auction or withdrawn, suspend, or terminate the sale from the auction for any reason must be collected by the Seller within 35 days upon notification by the Company to the Seller that he/she/it must reclaim the Lot.
(2) A storage fee of NT$1,000 per day per piece will be imposed on each Lot not collected after such 35 day period together with an additional charge for purchasing insurance coverage. The Seller may not reclaim such Lots until all the payments due are made.
(3) Such Lots may be removed to a third party warehouse if not collected in 60 days after the notification of collection is issued. The risk and expenses arising therefrom shall be borne by the Seller.
(4) The Company may dispose of the Lot in the manner it deems appropriate if such Lot is not collected within 90 days following the auction date or the notice date (whichever is the earlier). Such disposal includes removing the Lot to a third party warehouse with the associated risk and expenses borne by the Seller and to auction such Lots under terms deemed appropriate by the Company (including the terms of estimates and the Reserve Price). The Company will pay the Seller the auction proceeds after payments owed are offset.
(5) The Company is authorized to act as the sole agent of the Seller within 35 days following the auction for any Lot withdrawn from the auction or not sold. The Company may auction in private the Lot based on the Reserve Price or sell such Lot in private at a lower price agreed upon by the Company and the Seller. The Company has the rights to offset all expenses payable by the Seller in advance. Under such circumstances, the Seller's responsibilities and liabilities to the Company are the same as during an auction.
9. Photographs and Display
The Seller agrees the Company have rights to make the photographs, illustration, recordings and other reproduced images of the Lot. The Company owns all rights to the photographs, recordings and other reproduced images of the Lot made by the Company. All the rights (including but without limitation the copyright) of such images shall belong to the Company and the company is entitled to use such images in any manner it deems appropriate, and the Seller has no objection.
10. Other Matters
a. Taxes
(1) After the Lot sold out, the Seller shall provide passport, ID, company registration document or other necessary document or invoices to the Company for tax filing according to the tax laws of the Republic of China (Taiwan) or requirements of competent revenue agency.
(2) If the Seller is a Taiwanese company (or other types of legal entity except for individual), the Seller shall issue an invoice amounting the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) with the 5% VAT included in such amount to the Company.
(3) If the Seller is an individual who has domicile in Taiwan and resides in Taiwan, or who has no domicile in Taiwan but resides in Taiwan for a period of more than 183 days during a taxable year., and the Seller can provide sufficient and appropriate evidence for such standing to the Company, the Seller shall include the income derive from this transaction in the annual consolidated income tax report. The income amount will be the actual profit if the Seller can provide evidence of the sell price as well as the original cost for obtaining such item(s). Where no sufficient evidence of actual profit could be provided, the Seller shall include in the income tax report an income of 6% of the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) as the income derived from such property transaction.
(4) Where the Seller is not Taiwan resident as described above (foreign juridical person included), Seller agrees that the Company deducts 1.2% from the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) as income tax to the competent revenue agency according to the tax laws of the Republic of China (Taiwan). The amount to be deducted and filed with competent revenue agency by the Company shall be subject to change once the applicable tax rate is adjusted.
b. Electrical and Mechanical Parts
The Seller must be responsible for maintaining the safe operating condition of the electrical and mechanical parts of the Lot. The Seller must compensate the Company for all damages, the claims, costs and expenses arising out of any violation of the said guarantee and warranty by the Seller.
There are other special additional conditions apply to this provision. The relevant conditions are available at the Company.
Article 4. Terms Applicable to Both the Buyer and the Seller
1. Intellectual Property Rights
Intellectual property rights (including but without limitations, the copyright or patent) of all the images, photographs and written material in connection with the Lot shall maintain and belong to the Company at any time. The Buyer, Seller or any person may not use such items without obtaining prior written consent from the Company.
2. Privacy Rights
The Company will keep the personal information provided by the Seller and the Buyer in strict confidentiality, and manage, protect and process the above personal information properly according to Personal Information Protection Act and the laws and regulations related to privacy rights. The Company will not provide the above personal information to any third party. The obligations agreed to herein shall not apply to personal information which is:
a. Known by the Company, the affiliates and subsidiaries, proxy, consultant of the Company or the person who needs to know for the duty.
b. At the request of court order, any request from each government agencies (including but not limited to the administrative agency and judicial agency) or in accordance with regulations or law of any country.
c. Approved by written authorization of the party who provides the above personal information.
3. Notices
a. The Company shall distribute the notices in writing according to the Transaction Agreement herein, Mandate Agreement or contact information provided by the Buyer, or the Seller. The Company may distribute the notices via letter, email, communication application programs, fax or other tangible manners (referred to as "Contact Manner"), When the notification is issued, is considered to be the notice had been issued valid.
b. The Seller or Buyer shall notify the Company in writing of any changes of the Contact Manner.
4. Severability
a. If any part of the Transaction Agreement is deemed invalid, illegal or unenforceable by any court, such part can be ignored and the rest of the Transaction Agreement continues to be valid and enforceable to the maximum extent permitted by the law.
b. The conditions of the Buyer under Article 2 exclusively apply to the relationship between the Company and the Buyer, which the Seller shall not apply. And the conditions of the Seller under Article 3 exclusively apply to the relationship between the Company and the Seller, which the Buyer shall not apply.
5. This Agreement is entered into the parties in English and Chinese. If there is any conflict with two versions, the Chinese version shall prevail.
6. This Agreement may be revised or modified by the Company from time to time, and the Prospective Buyer, the Buyer and the Seller agree to obey the revision or modification.
7. Jurisdiction
If there is any dispute incurred regarding the Transaction Agreement or related matters, the Company, the Seller, the Buyer shall negotiate amicably first, and agrees that the Transaction Agreement are governed under the Republic of China (Taiwan) laws and the interpretation and effect of the Agreement shall be subject to the laws of Republic of China(Taiwan). The Buyer and Seller shall submit themselves to the exclusive jurisdiction of Taiwan Taipei District Court as the first instance and the appeal courts.
