General Conditions of Business
GENERAL CONDITIONS OF BUSINESS
(10 June 2016)
These Conditions apply to all sales conducted and services provided by the Company and any goods which are held by the Company for valuation, storage or any other purposes.
1. Definitions
In these Conditions the following words and expressions shall (unless the context otherwise requires) have the following meanings:
'Agreed Reserve' means the confidential minimum Sale Price at which a Lot may be sold as agreed in writing by Seller and the Company on the Consignment Agreement Form or otherwise.
'Auctioneer' means the representative of the Company conducting the auction.
'Buyer' means the person to whom a Lot is knocked down by the Auctioneer or a person who purchases a Lot sold by the Company on behalf of a Seller by private treaty or tender or any other sales process.
'Catalogue' includes any advertisement, brochure, price list and other publication produced by the Company.
'Charges' means charges and expenses paid or payable by the Company in respect of a Lot as set out in these Conditions, including legal expenses, packing or shipping costs, taxes, levies, removal and storage charges and interest, plus any GST payable. The relevant charges and expenses will be passed on to the Seller and/or Buyer at the price paid or payable by the Company plus 10%, or otherwise as is set out in writing or agreed by the Company and Seller and/or Buyer.
'Claims' means all sums of money, debts, dues, suits, actions, causes of action, proceedings, arbitrations, claims, accounts, liabilities, losses, demands, costs, expenses, notices or any other type of claim howsoever arising out of these Conditions or anything relating to the subject matter of these Conditions.
'the Company' means Second East Auction Holdings Pty Ltd ABN 4800 474 2509 trading as Sotheby's Australia unless written notification to the contrary is provided.
'Consignment Agreement Form' means the form signed, and a copy of which is received, by the Seller containing the terms on which the Seller submits a Lot or Lots for sale by the Company or the form used to provide a record of an item or items taken into custody for evaluation, research or advice.
'Dollars' or '$' means Australian currency.
'Estimated Selling Range' means the estimated Sale Price range of a Lot.
'Expenses' includes all fees, charges and expenses listed on the front page of the Consignment Agreement Form and/or correspondence annexed to it and/or as agreed in writing between the Company and the Seller.
'Forgery' means an imitation intended by the maker or any other person to deceive as to authorship, origin, date, age, period, provenance, culture, source or composition, which at the date of the Sale had a value materially less than it would have had if the Lot had not been such an imitation, and which is not stated to be such an imitation in the description of the Lot given in the Catalogue. A Lot will not be a Forgery by reason of any damage to and/or restoration and/or modification work (including repairing or over painting) having been carried out on the Lot, where that damage, restoration or modification work (as the case may be) does not substantially affect the identity of the Lot as one conforming to the description of the Lot given.
'GST' means a tax payable under the New Tax System (Goods and Services Tax) Act 1999 as amended.
'Hammer Price' means the price in Dollars (including GST, if any) at which a Lot is knocked down by the Auctioneer to the Buyer unless it is auctioned again ('Second Auction') as a result of a dispute in which event it means the price at which the Lot is knocked down by the Auctioneer to the Buyer at the Second Auction.
'Indemnity Fee' means the mandatory fee paid by the Seller on all sold Lots with the exception of V Lots and referred to in the Consignment Agreement Form, being 1.5% of the Hammer Price, plus GST.
'Lot' means any item or items consigned by or on behalf of the Seller to the Company with a view to its sale at auction or by private treaty and includes a V Lot.
'Lot Number' means the number allocated by the Company to a Lot prior to auction.
'Offer Fee' means the flat fee paid by the Seller regardless of whether a Lot sells and referred to in the Consignment Agreement Form.
'Premium' (unless otherwise stated in a relevant auction Catalogue) means 22% of the Hammer Price paid by the Buyer, plus GST. For V Lots the Premium is 15% of the Hammer Price paid by the Buyer, plus GST.
'Purchase Price' means the aggregate of the Sale Price, the Premium, any GST payable on the Sale Price and/or the Premium and the Charges.
'Sale' means any private treaty or auction sale at which a Lot is offered for sale.
'Sale Price' means the Hammer Price if sold at auction or the price agreed by the Buyer at private treaty (including GST, if any).
'Sale Proceeds' means the net amount payable to the Seller, being the Sale Price less the Seller's Commission, Expenses and any other amount payable to the Company by the Seller as agreed between the Company and the Seller (in whatever capacity and howsoever arising, whether in relation to these Conditions or otherwise).
'Second Auction' has the meaning set out in the definition of Hammer Price.
'Seller' means in relation to any Lot the person or other entity named as the Seller on the front page of the Consignment Agreement Form who offers the Lot for sale.
'Seller's Commission' means the amount paid by the Seller to the Company on the sale of a Lot that is calculated on the Sale Price at the rate agreed in writing by the Seller and the Company on the Consignment Agreement Form or otherwise, plus GST.
'Sotheby's Australia Trust Account' means account of Sothaust Pty Ltd ACN 139 521 752 as Trustee for Sotheby's Australia Client Trust Account.
'V Lot' means any motor vehicle or marine vessel consigned by or on behalf of the Seller to the Company with a view to its sale at auction or by private treaty.
2. The Company as agent
2.1 The Company is the agent of the Seller in relation to the sale of a Lot (except where it is expressly stated in writing to be selling as principal) and is not responsible for any default by the Seller or the Buyer.
2.2 The Seller instructs and authorises the Company to:
(a) sell the Lot as the Seller's agent in accordance with these Conditions;
(b) receive and hold all Sale Proceeds on the Seller's behalf;
(c) sign on the Seller's behalf any documentation necessary to transfer ownership of the Lot to the Buyer;
(d) allow the Lot to be inspected by prospective Buyers prior to the Sale, at any time and in any manner or place agreeable to the Company; and
(e) remove any Lot from the frame, holder, case or covering to examine it.
3. The Company's discretion
3.1 The Auctioneer has the right at his or her sole discretion to refuse any bid, to divide any Lot, to combine two or more Lots, to withdraw any Lot from Sale and, if there is a dispute or the Auctioneer or the Company is of the opinion that there has been a misunderstanding or mistake regarding a Sale or a Lot the subject of a Sale, to rescind the Sale and put any Lot up for a Second Auction.
3.2 If a Sale is rescinded, the Company may:
(a) put the Lot up for a Second Auction at a subsequent Sale; or
(b) offer the Lot for sale by private treaty; or
(c) withdraw the Lot from sale.
3.3 The Company may refuse entry to its premises or to any private premises at which it is conducting an auction by any person or persons at its absolute discretion.
4. Risk of personal loss or injury
The Company shall be under no liability for any injury, damage or loss sustained by any person while on the Company's premises or any Sale premises or where a Lot, or a part of a Lot, may be on view from time to time, except where the Company (and its employees or agents) has not acted with due care and skill.
5. The Company's Estimated Selling Range and descriptions
5.1 (a) Any Estimated Selling Range given by the Company is a statement of opinion and should not be relied upon as a representation as to the Sale Price a Lot may achieve at a Sale.
(b) The Company reserves the right to revise the Estimated Selling Range at any time with the agreement of the Seller.
5.2 The Seller acknowledges that the Company is entitled to rely on the accuracy of a description of a Lot provided by or on behalf of the Seller.
5.3 The Company shall not be liable for any error, misstatement or omission in the description of a Lot in any Catalogue, unless the Company (and its employees or agents) has engaged in misleading or deceptive conduct.
6. Warranties of Seller
6.1 The Seller warrants to the Company and the Buyer that:
(a) the Seller owns the Lot or the Seller is authorised to sell the Lot by the owner (in which case, an original signed authorisation by the owner must be provided to the Company);
(b) the Lot is free from all liens, charges encumbrances (including registration on the Personal Property Security Register) and third party claims including a claim by a spouse;
(c) the Seller has complied with all requirements, legal or otherwise, in relation to any export or import of the Lot and has notified the Company in writing of any failure by third parties to comply with such requirements in the past;
(d) the Lot and any written provenance given by the Seller to the Company are authentic;
(e) the Seller has notified the Company in writing of:
(i) any material alterations to the Lot of which the Seller is aware;
(ii) any concerns expressed by third parties in relation to the authenticity, provenance, origin, age, condition or quality of the Lot;
(iii) all information in the Seller's possession as to the provenance and identification of the Lot including, in respect of a V Lot, whether that V Lot complies with the provisions of any road traffic or maritime Acts and Regulations, and that information is correct; and
(f) the Lot is fit for its purpose and safe if used for the purpose for which it was designed and free from any defect not obvious on external inspection.
6.2 For motor vehicles and number plates the Seller will provide to the Company prior to the Sale all legal and requisite title and registration certificates, permits and other documents to transfer title of the Lot to the Buyer.
6.3 The Seller acknowledges that the Company relies on any information provided by the Seller and the Seller agrees to indemnify and keep indemnified the Company against all Claims arising out of or in connection with this information.
6.4 The Seller agrees to indemnify and keep indemnified the Company and or the Buyer against all Claims arising from the Seller's actual or alleged breach of any warranty in these Conditions.
7. Commission and Expenses
7.1 The Seller shall pay to the Company the Seller's Commission and any other Expenses set out in the Consignment Agreement Form.
7.2 The Company may deduct and retain the Seller's Commission from the amount paid by the Buyer for the Lot as soon as the Purchase Price, or part of it, is received and before the Sale Proceeds are paid to the Seller.
7.3 The Seller shall pay to the Company the relevant Offer Fee on a Lot being offered for sale whether or not the Lot is sold.
8. Reserves
8.1 All Lots will be sold without reserve unless there is an Agreed Reserve. If a Lot has an Agreed Reserve then it will be offered subject to the Agreed Reserve. There shall be no Agreed Reserve for Lots with an Estimated Selling Range of less than $1,000.
8.2 If there is an Agreed Reserve:
(a) it may only be changed with the written consent of the Company although the Company may at its own discretion consent to an oral request for a reduction (but not an increase);
(b) only the Auctioneer may place a bid on behalf of the Seller;
(c) neither the Seller nor any person on the Seller's behalf may bid on the Lot;
(d) if the Auctioneer is of the opinion that the Seller or a person on the Seller's behalf may have bid on the Lot, the Auctioneer may knock down the Lot to the Seller without observing the Agreed Reserve and the Seller shall pay to the Company the Premium in addition to the Seller's Commission and Expenses.
8.3 If a Seller purports to place a reserve on a Lot but that reserve is not an Agreed Reserve, the Company will sell the Lot without reserve unless the Seller withdraws the Lot from Sale in accordance with clause 11.
8.4 If there is no Agreed Reserve, the Company shall not be liable if the Sale Price of the Lot is less than the Estimated Selling Range.
8.5 Where the Agreed Reserve for a Lot is $5,000 or less and the Lot is offered for sale and is unsold, the Company reserves the right to lower the Agreed Reserve for the Lot for a subsequent Sale by up to 20%.
9. Risk
9.1 Any V Lot in the power, possession or custody of the Company (including during transportation by employees or agents of the Company) shall at all times remain at the risk of the Seller until the legal risk passes to the Buyer (see clause 9.8 below) and, except where the Company (and its employees or agents) has not acted with due care and skill, the Company shall not be liable for any Claims relating to any V Lot.
9.2 The Seller shall not make any Claim against the Company in respect of loss of or damage to any V Lot, except where the loss or damage is as a result of the Company (and its employees or agents) not acting with due care and skill, and, other than in circumstances where the Company (and its employees or agents) has not acted with due care and skill, the Seller indemnifies the Company against all Claims relating to or caused by any V Lot.
9.3 The Seller shall insure any V Lot in the power, possession or custody of the Company for no less than the maximum value of the V Lot as estimated by the Company for loss of or any damage to the V Lot and shall maintain that insurance until the Lot has been sold and the Seller has been notified by the Company that the Purchase Price has been received.
9.4 In respect of Lots that are not V Lots, the Company indemnifies the Seller against some risks arising from fire and other insurable perils, theft following forcible entry, hold up and water damage to the extent of the Company's insurer's liability to it in that regard. In the event of a loss, except where the loss is as a result of the Company (and its employees or agents) not acting with due care and skill, the Seller may only claim an amount up to:
(a) in the case of unsold Lots:
(i) the Agreed Reserve; or
(ii) in the absence of an Agreed Reserve, the low end of the Estimated Selling Range; or
(iii) in the absence of (a) or (b) above, an amount included in a loss assessment provided by the Company or, if disputed by the Seller, by an independent loss assessor appointed by the Company; or
(b) in the event that the loss occurs after the fall of the Auctioneer's hammer and the Lot is sold but the Company has not yet received payment from the Buyer as cleared funds, an amount equal to the net proceeds which would have been due to the Seller.
9.5 The Company will charge the Seller the Indemnity Fee for providing the indemnity referred to in clause 9.4 if the Lot is sold.
9.6 The Company's own insurance will subsist until payment is made by the Buyer or, in the case of unsold Lots, until the expiry of 7 days after notice from the Company requiring the Seller to collect the unsold Lot.
9.7 Subject to clause 9.4 , the Company will not be liable for any Claims relating to or caused by any Lot or by the Seller, except where the Company (and its employees or agents) has not acted with due care and skill, and the Seller indemnifies the Company against all Claims relating to or caused by any Lot, except where the Company (and its employees or agents) has not acted with due care and skill.
9.8 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 the Company nor the Seller shall thereafter be liable for, and the Buyer indemnifies the Company against, any loss or damage of any kind, except where the Company (and its employees or agents) has not acted with due care and skill.
9.9 The Company advises all Buyers to arrange for their own insurance cover for purchased Lots effective from the fall of the Auctioneer's hammer to protect their interests as the Company cannot warrant that the Seller has insured its interests in the Lots or that the Company's insurance cover will extend to all risks.
9.10 Where the Company has exercised due care and skill, the Company:
(a) does not accept responsibility for Lots damaged by insect infestation or by changes in atmospheric conditions; and
(b) shall not be liable for such damage nor for any other damage to glass or to picture frames.
10. Payment to Seller
10.1 The Company is only liable to the Seller for payment of the Sale Proceeds if the Purchase Price has been received in cleared funds by the Company.
10.2 If the full Purchase Price has been received in cleared funds by the Company within 21 days of the date of the Sale, the Company shall pay the Sale Proceeds to the Seller not later than 35 days after the date of the Sale. Unless an alternative method of payment shall have been agreed in writing with the Seller, payment shall be made by sending to the Seller a cheque by post at the Seller's risk.
10.3 If the Purchase Price has not been received in full by the Company within 21 days of the date of the Sale, the Company shall pay the Sale Proceeds within 6 business days after the date on which the full Purchase Price is received in cleared funds from the Buyer.
10.4 If the Buyer fails to pay the Purchase Price within 21 days after the date of the Sale then the Company will give notice of this to the Seller. If the Seller does not give written instructions to the Company in response to this notice within 7 days then the Company may do any of the following for and on behalf of the Seller (who will give the Company any assistance it may require):
(a) agree terms for the payment of the Purchase Price with the Buyer;
(b) remove, store and further insure the Lot sold;
(c) settle any Claim by or against the Buyer;
(d) take such steps as the Company shall at its absolute discretion consider necessary to collect the monies due from the Buyer;
(e) rescind the Sale and refund any monies to the Buyer;
(f) offer the Lot for resale by private treaty or auction on the same terms as appear in the Consignment Agreement Form;
(g) appoint a solicitor or other agent to do any of the above.
10.5 Any monies recovered by and paid to the Company by the Buyer shall be applied in the following order (in each case together with interest) to the payment of:
(a) any legal or other costs incurred by the Company;
(b) the Expenses;
(c) the Premium;
(d) the Seller's Commission; and any balance remaining shall be paid by the Company to the Seller (or, if appropriate, the Buyer).
10.6 In the event that there is a shortfall, any such shortfall shall be made good by the Seller to the Company on demand.
10.7 If, within 7 days of receipt of the notice referred to in clause 10.4, the Seller informs the Company that the Seller wishes to take delivery of the Lot, the Seller shall be entitled to do so but only upon prior payment of the Offer Fee and any legal and other costs incurred by the Company so as to provide the Company with a full indemnity in respect of those costs.
10.8 If the Company rescinds a Sale because the Lot is proved to its reasonable satisfaction to be a Forgery (see clause 16.5) and the Company has accounted to the Seller for the Sale Proceeds, the Seller must immediately refund the Sale Proceeds to the Company, which will then refund the Purchase Price to the Buyer and make the Lot available to the Seller for collection.
11. Withdrawal fees
11.1 A Seller may only withdraw a Lot from sale by written notice signed by the Seller.
11.2 If a Seller withdraws a Lot from sale either at any time after 30 days have elapsed after signing the Consignment Agreement Form or after the Company has photographed the Lot and/or allocated a Lot Number to the Lot (whichever is the earlier) but before the Lot has been advertised and/or catalogued for auction, the Seller shall pay to the Company the Expenses plus a withdrawal fee equal to 15% plus GST of the higher of: (a) the average of the Estimated Selling Range high and low estimates; and (b) the Agreed Reserve.
11.3 If a Seller withdraws a Lot from sale after the Company has advertised and/or catalogued the Lot for auction but before the Lot has been put on view, the Seller shall pay to the Company the Expenses plus a withdrawal fee equal to 25% plus GST of the higher of:
(a) the average of the Estimated Selling Range high and low estimates; and
(b) the Agreed Reserve.
11.4 If a Seller withdraws a Lot from sale after the Lot has been put on view at the sale venue or in the Company's premises up to and including 28 days after the Sale, the Seller shall pay to the Company the Expenses plus a withdrawal fee equal to 30% plus GST of the higher of:
(a) the average of the Estimated Selling Range high and low estimates; and
(b) the Agreed Reserve.
11.5 If a Seller purports to change the Agreed Reserve at any time without the consent of the Company, the Seller shall be deemed to have withdrawn the Lot from sale.
11.6 If the Company or the Seller is restrained by order of any Court or other competent authority from selling a Lot or if the Company has reasonable cause for believing that either:
(a) the Company or the Seller is so restrained or otherwise not legally entitled to sell the Lot;
(b) the Seller is in breach of any one or more of the warranties of the Seller, or
(c) the description of the Lot given to the Company by the Seller is inaccurate or misleading in any material respect, then the Company may by notice in writing to the Seller decline to sell the Lot in question and the Seller shall be deemed to have withdrawn the Lot from sale.
11.7 If a Lot is withdrawn from sale or deemed to have been withdrawn then the Seller shall arrange for collection and removal of the Lot at Seller's expense within 2 business days after the date of withdrawal provided that the Seller has paid the Expenses and the applicable withdrawal fee.
11.8 If the Company incurs any legal and other costs investigating or defending any Claims concerning the ownership of a Lot, the accuracy of the description of the Lot contained in the Catalogue or the warranties of the Seller, the Seller shall indemnify the Company for all such costs.
11.9 The Company is authorised by the Seller to apply any money held by the Company on behalf of the Seller to the payment or reimbursement of any amount payable by the Seller to the Company including the Expenses and the withdrawal fees.
11.10 The Company may claim a lien on any goods held by the Company for the Seller until all money payable to the Company by the Seller has been paid and, if it is not paid within 28 days, may exercise a power of sale over those goods.
12. Photography and illustration
12.1 The Company shall have the right to photograph and make illustrations of any Lot and to use at its discretion in the normal course of business such photographs and illustrations, and any photograph or illustration of a Lot owned and supplied by the Seller, whether or not in conjunction with the Sale.
12.2 Where the Seller agrees to the cost of such photographs and illustrations being incurred (and the amount to be incurred), the Seller is liable for the payment of that cost.
12.3 The copyright of all photographs taken and illustrations made of any Lot by and on behalf of the Company shall be the absolute property of the Company.
13. Resale Royalty
The Resale Royalty Right for Visual Artists Act 2009 (Cwth) ('the Act') will apply to the commercial resale of Artwork. Buyers and Sellers must inform themselves of the provisions of the Act. The seller:
(a) acknowledges that the Company will rely upon the information supplied by the Seller and Copyright Agency Limited ('CAL') to determine whether a Resale Royalty is applicable;
(b) acknowledges that the Seller understands their legal obligations under 'the Act';
(c) undertakes to comply with all requirements of 'the Act', including by providing its' agent, the Company, with accurate information sufficient for compliance with sections 28 and 29 of 'the Act';
(d) undertakes to indemnify the company for any Resale Royalty fee and loss incurred by the Company as a result of the Seller's failure to comply with any of the Seller's legal obligations under 'the Act';
(e) agrees that if the Seller fails to comply with any of the Seller's legal obligations under the Act, authorises the Company to provide the seller's name and contact details to CAL.
(f) where the lot is subject to the provisions of the Act, the Seller will be advised by the Company and/or CAL and will be responsible to pay the Resale Royalty as defined.
14. Unsold Lots
14.1 The Seller must request from the Company confirmation as to whether or not a Lot has been sold at the Sale. If a Lot is unsold the Seller shall advise the Company that the Seller wishes to collect the Lot and shall arrange for its removal from the premises of the Company or the Sale premises. The Seller must pay to the Company the Offer Fee and all Expenses, and the estimated cost of delivery of the Lot if the Company agrees to arrange redelivery to the Seller before removal of an unsold Lot.
14.2 If a Lot is unsold at the Sale, the Company is authorised by the Seller as the Seller's sole agent to sell the Lot by private treaty or by auction for a price that is not less than the Agreed Reserve at any time within 28 days after the Sale, provided that:
(a) if the highest offer for an unsold Lot is referred to the Seller then the Seller may accept that offer; and
(b) if the maker of the offer wishes to withdraw the offer then they must do so in writing prior to the communication to them by the Company of the Seller's acceptance of the offer.
14.3 If the Seller sells a Lot that was unsold at the Sale:
(a) within 90 days after the Sale to a person who was registered to bid at the Sale; or
(b) within 28 days after the Sale to any person, the Seller must notify the Company in writing of the terms of the Seller's Sale within 7 days and pay the Seller's Commission, the Offer Fee and the Premium to the Company within 7 days after the Seller's Sale as though the Company had sold the Lot on behalf of the Seller.
14.4 Any unsold Lot not collected by the Seller within 28 days after the Sale the Company will charge a handling fee at $100 plus GST per Lot, storage fee at $20 plus GST per Lot per week and Indemnity fee at 1.5% plus GST of lower estimate per annum or part there off.
14.5 If an unsold Lot is not collected by the Seller or sold by the Company within 28 days after the Sale and after the Company has given to the Seller 7 days' notice to arrange for its collection, then the Seller authorises the Company to dispose of the unsold Lot by public auction without reserve and to deduct from the Sale receipts all monies owing by the Seller to the Company.
15. The Buyer
15.1 The Auctioneer may knock down a Lot to the person who, at his or her absolute discretion, he or she believes is the highest bidder acceptable to the Company, subject to any Agreed Reserve. Any dispute may be determined by the Auctioneer at his or her absolute discretion and the decision of the Auctioneer shall be final.
15.2 Every bidder shall be deemed to act as principal unless prior to the commencement of the Sale there is a written acceptance by the Company that the bidder is acting on behalf of a third party and that the bidder is not personally liable.
15.3 No person shall be entitled to bid at a Sale without first having completed and delivered to the Company a bidder registration form acceptable to the Company and the registration form will include an acknowledgement by a bidder that they are bound by these Conditions. The Company is the agent of the Seller, not the Buyer, and it is not intended that there be any legal relationship between the Company and the Buyer.
15.4 In addition to the bidder registration form, the Company reserves the right to request from prospective bidders and to deliver to the Company a deposit of AUD$10,000 or such other higher amount as may be determined by the Company together with any financial references, guarantees and/or such other security as the Company may require in its absolute discretion, as security for the bid. Any required deposits shall be paid in Australian dollars by way of cash, wire transfer, approved bank cheque or approved debit/credit card prior to the sale (clients must be present their cards in person to the Company). If a client is not successful on any lot, the Company will arrange for a refund (subject to any right of set off) of the deposit amount paid by such client without interest within 5 working days from the day of the sale. Any exchange losses or fees associated with the refund shall be borne by the client.
15.5 The Company has no obligation to accept any preregistration application. The Company's decision on this regard shall be final.
16. Buyers to satisfy themselves
16.1 Lots are sold on an 'as is' basis and it is the responsibility of prospective Buyers to examine a Lot prior to the Sale and to satisfy themselves as to the condition of the Lot and that the Lot matches any written or oral description provided by the Seller or the Company.
16.2 All descriptions provided by the Seller or the Company are subject to any statements made by the Auctioneer from the rostrum prior to any bid being accepted for the Lot and any illustrations in the Catalogue are solely for the guidance of prospective Buyers and should not be relied upon in terms of tone or colour or necessarily to reveal imperfections in any Lot.
16.3 In bidding for any Lot, prospective Buyers agree that they have not been induced to make any bid by any representation, to the extent the representation is not misleading or deceptive, in respect of the Lot by the Company, including any representation arising from a document that has been provided by the Seller to the Company in association with the Sale of a Lot and made available by the Company for inspection by prospective Buyers. If prospective Buyers wish to rely on any representation made by or on behalf of the Company, they must advise the Company in writing of this prior to the Sale. 16.4 If the Company is found to be liable for any loss or damage suffered, other than in circumstances where the loss or damage suffered is as a result of the Company (and its employees or agents) not acting with due care and skill or the Company (and its employees or agents) engaging in misleading or deceptive conduct,
(a) the maximum liability of the Company to a Buyer shall be the Sale Price of the relevant Lot and the Premium (if paid by the Buyer); or
(b) the maximum liability of the Company to a Seller shall be the Sale Proceeds of the relevant Lot, and the Company shall not be liable for any consequential or indirect loss whatsoever.
16.5 If a Lot is proved to the reasonable satisfaction of the Company to be a Forgery then the Company may rescind the Sale as agent of the Seller in which case the Seller shall refund the Sale Proceeds to the Company, which will refund the Purchase Price to the Buyer and make the Lot available to the Seller for collection provided that:
(a) the Buyer provides written notice to the Company within 14 days of the auction date of the Forgery allegations;
(b) the Buyer produces evidence from two independent experts who both agree that the Lot is a Forgery, however, the Company reserves the right to request further expert evidence if, in its sole discretion, it is not satisfied with the findings by the experts;
(c) the Buyer returns the Lot to the Company in the same condition as it was at the date of the Sale;
(d) the Buyer warrants that it has not sold or transferred the Lot nor created any rights in respect thereof in favour of any third party;
(e) the Seller has refunded the Sale Proceeds to the Company.
16.6 The benefits of this clause are for the Buyer only and cannot be assigned.
16.7 Despite clause 16.5 the Company has no obligation to rescind the Sale and the Buyer shall not be entitled to rescind the Sale if in the opinion of the Company:
(a) the description of the Lot in the Catalogue was accurate at the time of its publication based on the opinion of an expert in the relevant area of expertise at that time; or
(b) the only method of establishing at the time of publication of the Catalogue that the Lot was a Forgery would have been a scientific process not then in general usage, or which would have been too costly or impractical or would have been likely to cause damage to the Lot.
16.8 If the conditions of clause 16.5 are satisfied and clause 16.7 does not apply, the maximum liability of the Company to a Buyer shall be the Sale Price of the relevant Lot and the Premium (if paid by the Buyer) but shall not include a refund of storage charges, insurance, interest and the like, or any consequential or indirect loss or damage suffered or expense incurred by the Buyer.
17. Premium
Unless otherwise stated in the Catalogue, the Buyer shall pay the Company the Premium. The Buyer acknowledges that the Company may also receive a Seller's Commission.
18. Contract of sale
18.1 Subject to the Company's discretion, on the acceptance of a bid by the fall of the Auctioneer's hammer a contract of sale is made between the Seller and the Buyer. The Company 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.
18.2 Risk of the Lot will pass to the Buyer on the fall of the Auctioneer's hammer.
18.3 Title to the Lot will pass to the Buyer when the full Purchase Price has been received by the Company by way of cleared funds.
19. Payment by Buyer
19.1 At that same time that a prospective Buyer registers to bid he or she must give the Company his or her name and address and, if requested by the Company, banking or other suitable references or identification and an acknowledgement that they have read and agreed to be bound by these Conditions.
19.2 The Purchase Price must be paid to the Sotheby's Australia Trust Account not later than 4.00 pm on the second day after the Sale unless otherwise stated in the Catalogue.
19.3 On the fall of the Auctioneer's hammer, the successful bidder on any V Lot, and other Lots as determined by the Company at its absolute discretion, may be required to provide a deposit equal to 15% of the Hammer Price, either in cash, approved credit card or approved bank cheque. If the successful bidder does not do so then the Company may rescind the Sale and resubmit the Lot for a Second Auction.
19.4 Absentee or telephone bidders who are unable to attend a Sale and who wish to bid on any V Lot and other Lots as determined by the Company at its absolute discretion may be required to provide a deposit equal to 15% of the low end of the Estimated Selling Range, either in cash, wire transfer, approved bank cheque or approved debit/credit card prior to the Sale (clients must be present their cards in person to the Company). In the event that such absentee or telephone bidders are unsuccessful then the Company will refund (subject to any right of set off) any deposits received within 5 working days from day of the Sale. Any exchange losses or fees associated with the refund shall be borne by the client.
19.5 Full payment for all Lots must be made to the Company by cash, electronic funds transfer or approved credit card. Where the Buyer wishes to pay by bank cheque, personal or company cheque, and the Company has agreed that the Buyer may do so, a V Lot will not be released until the cheque has cleared and other Lots may not be released until the cheque has been cleared.
19.6 No Lot may be collected until the full Purchase Price has been received by the Company unless prior arrangements in writing have been made with the Company before the date of the Sale, provided always that ownership of the Lot will not pass to the Buyer until cleared funds in payment of the full Purchase Price have been received by the Company.
20. Collection of Goods
Purchases are to be collected and paid for by the second day after the Sale. Unsold Lots must be collected within 28 days after the sale. The Buyer or Seller (as applicable) shall be responsible for any removal, storage, or other charges for any Lot after this day. The Buyer or Seller (as applicable) is responsible for arrangements for shipping, handling and packing of goods including transit insurance. If the Company introduces any Carrier, Packer or Shipper no recommendation is to be implied. The Company may assist with packing of goods but takes no responsibility for loss, damage or breakage that may occur. The Company will not roll canvases sold on stretchers or remove works from frames or mounts.
21. Responsibility for Lots purchased
21.1 The Buyer shall be responsible for any loss or damage to, or caused by, a Lot purchased by the Buyer from the fall of the Auctioneer's hammer and neither the Company nor its employees or agents shall be responsible for any Claim while the Lot is in its power, possession or custody, except where the Company (and its employees or agents) has not acted with due care and skill.
21.2 Unless expressly stated in a Catalogue, the Company has no knowledge of whether a V Lot complies with the provisions of any road traffic or maritime Acts and Regulations. The Buyer of a V Lot who intends to use it on a public road or waterway shall be responsible for ensuring that it complies with the provisions of any road traffic or maritime Acts and Regulations.
21.3 The Buyer shall be solely responsible for obtaining any export licence that may be required in connection with a purchased Lot. 21.4 The Buyer of a firearm must obtain any certificates and licences required by law. The Company may refuse delivery of a Lot to a Buyer without evidence of compliance by the Buyer.
22. Non?payment or failure to collect
22.1 If the Purchase Price in respect of a Lot is not paid for in full in accordance with clause 19, the Company may, after a period of two weeks (during which time the Company will attempt to contact to the Buyer), and in its absolute discretion and without prejudice to any other rights or remedies it may have, exercise one or more of the following remedies:
(a) re?sell the Lot without reserve by auction, private treaty or any other means provided that 2 days prior notice is given to the Buyer who agrees not to challenge the resale price achieved in respect of the Lot;
(b) remove, store and further insure the Lot at the expense of the Buyer; (c) charge interest on the Purchase Price at the rate of 1.65% per month or part thereof from the date upon which the Purchase Price becomes payable until the full Purchase Price has been received by the Company from a resale;
(d) retain any Lot sold to the Buyer at the same or any other auction until payment of the Purchase Price by the Buyer;
(e) apply the proceeds of the Sale of any Lot then due or at any time thereafter becoming due to the Buyer in payment or part payment of the Purchase Price;
(f) exercise a lien on or exercise a power of sale over any other property of the Buyer in the power, possession or control or the Company;
(g) rescind the Sale of that Lot or any other Lot sold by the Seller to the Buyer at the same or any other auction sale;
(h) repossess any goods comprising any Lot in respect of which payment is overdue and thereafter resell the same, and for this purpose the Buyer hereby grants an irrevocable licence to the Company to enter upon all or any of the Buyer's premises (with or without vehicles) during normal business hours, without prejudice to any other rights of the Company;
(i) issue legal proceedings against the Buyer;
(j) reject a bid from the Buyer at any future auction sale or require the Buyer to pay a deposit before any bid is accepted by the Company at any future Sale.
22.2 If the Lot is not collected in accordance with clause 20, the Company may, after a period of two weeks (during which time the Company will attempt to contact to the Buyer), and in its absolute discretion and without prejudice to any other rights or remedies it may have, exercise one or more of the following remedies:
(a) remove, store and further insure the Lot at the expense of the Buyer;
(b) rescind the Sale of that Lot or any other Lot sold by the Seller to the Buyer at the same or any other auction sale.
22.3 The Buyer shall pay all reasonable legal and other costs reasonably incurred by the Company or the Seller (whether or not Court proceedings shall have been issued) as a result of the Buyer's non?payment for and/or failure to collect a Lot, on a full indemnity basis, together with interest thereon at the rate specified in clause 22.1(c) from the date upon which the Buyer shall have become liable to pay costs.
23. Absentee or commission bids
23.1 An absentee bidder may make an absentee bid in the form of written instructions directing the Company to bid on one or more Lots up to a maximum amount specified for each Lot. The Company will execute the absentee bid at the lowest possible price taking into account the Agreed Reserve and other bids. There is no charge for this service. If identical bids are left by two or more parties, the first bid received by the Company will take preference. The Auctioneer may execute bids for absentee bidders directly from the rostrum, clearly identifying these as absentee or commission bids.
23.2 The Company is prepared to execute telephone bids on behalf of prospective Buyers who are not at the auction at no charge on the condition that the prospective Buyer acknowledges that taking instructions by telephone in the course of an auction has inherent risks (such as miscommunication, misunderstanding or other problems caused by a telecommunications fault or failure including a mobile telephone connection falling out).
23.3 A telephone bidder may nominate an emergency bid amount to cover an instance where a telephone connection is not available. The operator can execute the bid up to the nominated amount in the telephone bidder's absence.
23.4 The Company shall not be responsible for any errors or omissions in connection with the execution of absentee or telephone bids.
24. GST
24.1 Interpretation Words or expressions used in this clause 24 that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning.
24.2 GST and amounts payable to the Company: (a) All amounts owing by the Seller to the Company (including, without limitation, the Seller's Commission, the Offer Fee, the Indemnity Fee, and Expenses) under this agreement do not include GST. If and to the extent that any amount owing by the Seller to the Company is consideration for a taxable supply by the Company, the amount shall be increased by an amount equal to the GST payable by the Company on that supply. (b) All amounts payable by the Buyer to the Company under this agreement (including, without limitation, the Premium) do not include GST. If and to the extent that any amount payable by the Buyer to the Company is consideration for a taxable supply by the Company, the Buyer must pay to the Company, an additional amount equal to the GST payable on the supply.
24.3 GST and amounts payable to the Seller
(a) The Seller must, on or before the date of the Sale, notify the Company whether it is registered for GST, and if so, must provide its ABN to the Seller at the same time.
(b) If the Seller notifies the Company that it is registered for GST in accordance with clause 24.3(a):
(i) the Seller authorises the Company as its agent, to issue a tax invoice to the Buyer in respect of the Sale of any Lot which is a taxable supply; and
(ii) on payment of the Sale Proceeds to the Seller in accordance with clause 10, the Company will:
(A) notify the Seller of the amount of GST included in the Sale Price for the Lot to enable the Seller to determine its GST liability on the Sale; and
(B) give the Seller a tax invoice for any taxable supply made by the Company to the Seller under this agreement (including, without limitation, any supply for which the Seller's Commission, the Offer Fee, the Indemnity Fee, and Expenses are consideration) including any amounts payable on account of GST in accordance with clause 24.2(a).
24.4 GST on sale of Lot to Buyer
(a) The Sale Price is inclusive of GST (if any) and shall not be increased any further for any GST payable by the Seller in respect of the Sale unless the item is marked in the catalogue with a †, then GST will be added to the hammer price.
(b) If the Seller has informed the Company that it is registered for GST in accordance with clause 24.3(a), the Company will, upon request by the Buyer or otherwise at its discretion, issue a tax invoice to the Buyer showing:
(i) the amount of GST included in the Sale Price; and
(ii) any amounts payable by the Buyer to the Company in consideration for any taxable supply made by the Company to the Buyer under this agreement and any GST payable on that supply in accordance with clause 24.2(b).
(c) If the Seller does not inform the Company that it is registered for GST in accordance with clause 24.3(a), the Sale will be presumed not to be a taxable supply, and the Company will only issue a tax invoice for any taxable supply made by the Company to the Buyer under this agreement (including, without limitation, any taxable supply for which the Premium is consideration and any amounts payable on account of GST payable on that supply in accordance with clause 24.2(b)).
(d) A Buyer of a Lot sold by a GST registered Seller that is subsequently exported from Australia may be able to claim a refund from the Company for any GST included in the Sale Price of a Lot if, within 60 days of the Sale, the Buyer provides the Company with:
(i) all relevant shipping documents confirming that the goods have been exported from Australia; and
(ii) evidence to the reasonable satisfaction of the Company that the Buyer is not registered or required to be registered for GST in Australia. However, the Company need not refund any GST amount to the Buyer under this clause, unless and until it receives a refund of this amount from the Seller.
(e) Notwithstanding clause 24.4(d) above, the Company may (at its absolute discretion and at the request of the Buyer), agree to arrange for the export of the Lot on such conditions as the Company sees fit.
24.5 Obligations of non?resident Sellers
(a) This clause 24.5 only applies to Sellers that are non?residents of Australia.
(b) In accordance with relevant provisions under Division 57 of the GST Act, the Seller acknowledges and agrees that the Company Is its agent for the purposes of arranging the importation and sale of the Lot through the Company. Without limiting any of the above, the obligations of the company shall include:
(i) to account for GST in respect of Lots sold through the Company;
(ii) to claim input tax credits in respect of Lots imported through the Company;
(iii) to issue tax invoice documentation to the Buyer in respect of sale of Lots made through the Company;
(iv) to register as a resident agent for GST purposes and otherwise satisfy all relevant requirements under Division 57 of the GST Act; and
(v) to lodge periodic GST returns in respect of all supplies, acquisitions and importations made by the Seller through the Company;
24.6 Reimbursements (net down) If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled on the acquisition of the taxable supply to which that loss, cost or expense relates.
25. Currency converter
The Company may provide a currency converter for the convenience of bidders. The rates quoted for conversion of other currencies to Dollars (or the currency in which the relevant Sale is conducted) are indicative only and neither the Company nor its agents shall be responsible for any errors or omissions in the converter.
26. Governing Law and Jurisdiction
26.1 These Conditions are governed by and shall be construed in accordance with the law of the State in which the Sale is conducted ('Sale State').
26.2 The Company, the Seller, the Buyer and any bidders at the Sale irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Sale State.
27. Notices
27.1 A notice, demand, consent or approval or communication under these Conditions ('Notice') must be:
(a) in writing, in English, and signed by a person duly authorised by the sender; and
(b) delivered by hand or sent by prepaid post, and by airmail when sent to a destination outside Australia, or facsimile or email to the recipient's address as varied by any Notice given by the recipient to the sender.
27.2 A Notice given in accordance with clause
27.1 takes effect when it is taken to have been received (or at a later time specified in it), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by facsimile, on receipt by the sender of the transmission report at the conclusion of the transmission;
(c) if sent by mail, two days after the date of posting if posted to an address within the country of posting and seven days after the date of posting if posted to a country outside Australia; and
(d) if sent by email, at the time of transmission unless the sender is notified that the email was undeliverable.
27.3 In proving service by delivery: (a) by hand, it shall be necessary only to produce a receipt for the communication signed by or on behalf of the recipient;
(b) by facsimile, it shall be necessary only to produce the confirmatory transmission report;
(c) by post, it shall be necessary only to prove that the communication was contained in a pre?paid envelope which was duly addressed, posted and, in the case of the Notice being sent to a destination outside Australia, was sent by airmail; and
(d) by email, it shall be necessary only to prove that the communication was sent to the correct email address.
28. General provisions
28.1 The non?exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
28.2 These Conditions constitute the entire agreement of the parties on the subject matter. All representations, communications and prior agreements, to the extent they are not misleading or deceptive, in relation to the subject matter are merged in and superseded by these Conditions.
28.3 The parties agree that, if the whole or any part of any one or more provisions is judged invalid or unenforceable, that portion will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
28.4 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 results from any event or circumstance beyond its reasonable control. The party interfered with shall give the other party prompt written notice of any such force majeure condition. If notice is provided, the time for performance or cure shall be extended for a period equal to the duration of the force majeure event or circumstance described in such notice, except that any such cause shall not excuse the payment of any sums owed to the Company prior to, during, or after any such force majeure condition.
28.5 The Company reserves the right to register its interest in any Lot on the Personal Property Security Register as provided for under the Personal Property Securities Act 2009 in its own right or for and behalf of the Buyer or Seller as the case may be.
JEWELLERY:
IMPORTANT NOTICES TO PROSPECTIVE BIDDERS
All statements made in this catalogue are made subject to the General Conditions of Business printed at the back of this catalogue.
Regarding Jewellery: The ACCC maintains that a valuation for Insurance Purposes represents a Valuation for Retail Replacement purpose and does not reflect what one would expect to receive if one sells the item in the second-hand marketplace.
In line with the ACCC guidelines, Sotheby's Australia points out that a valuation for insurance purposes tends to be a statement of the items' average retail value. Accordingly that value is considerably more than one would normally expect to pay for the same at Auction.
Sotheby's Australia makes no representation or warranty regarding any outside Valuation or Certificate of any jewellery on offer. Prospective bidders should note the date and purpose for which the valuation was produced and all buyers must make their own assessment as to an item's value.
Statements in the catalogue regarding the condition of lots in this sale may appear in the description. However, the absence of any such reference does not imply that a lot is free from wear or imperfections or does not need repair. Sotheby's Australia will be pleased to offer condition reports on all lots in the sale to potential bidders upon request. Bidders should inspect the items and all items are sold as inspected.
Where possible precise weights, measures and grading are provided. However, since in many cases this is not possible, buyers should not rely on any as being exact. When a weight is described as "approximately" it is in the opinion of the auctioneer an estimation of the weight of the gemstones in their settings and should therefore be considered as an approximation. This information is given as a guide and prospective bidders should satisfy themselves with regard to this information as to its accuracy.
Historically gemstones have been subjected to a variety of treatments to improve their appearance. Typically rubies and sapphires have been heat treated, whilst emeralds have been treated by oil or resin to improve their colour and clarity. Other treatments, whilst not exclusive, including staining, coating, impregnation and irradiation have also been used on gemstones. Although it is widely held that heat treatments are permanent, bidders should assume that any treatment may not be permanent and that over time special care or re-treatment of the stone may be required to retain their appearance. Prospective bidders are reminded that unless the catalogue description specifically states that a stone is untreated, Sotheby's Australia has assumed that some form of treatment may have been used and that such treatment may not be permanent, and the same is reflected in the lot estimates.
References in the catalogue descriptions to certificates or reports issued by gemological laboratories are included only for the information of prospective bidders and Sotheby's Australia accepts no responsibility for the accuracy, terms or information contained in such certificates or reports and furthermore is not liable for any loss, damage or liability related to any reports supplied.
Jadeite and rubies of Burmese origin and articles of jewellery containing jadeite or rubies of Burmese origin less than 100 years old may not be imported into the USA. Certification of non-Burmese origin will be required before import of jadeite or ruby into the USA.
SIGNATURES:
1) CAPITALISED HEADING
When the maker's name appears in the CAPITALISED HEADING in the catalogue description, in Sotheby's Australia's qualified opinion, the piece is by the named jeweller.
2) NAME OF JEWELLER
When we state the name of a maker in the catalogue description below the CAPITALISED HEADING, we mean that, in Sotheby's Australia's qualified opinion, although unsigned, the piece is by the named jeweller.
3) MOUNTING BY
When we state in the catalogue description below the CAPITALISED HEADING "Mounting by______", we mean that, in Sotheby's Australia's qualified opinion, the mounting is by the jeweller, but either the gemstones have been replaced or the piece has been altered in some way after its manufacture
Regarding Watches: Prospective bidders should satisfy themselves by personal inspection as to the condition of each lot. If the prospective bidder is not able to inspect the piece, as a courtesy to our clients, we are pleased to provide an opinion of the condition of the property on request. However, since we are not professional watch restorers, any statement of opinion listed is purely subjective and is not a statement of fact.
Condition reports may not specify all mechanical replacements or imperfections to the movement, case, dial, pendulum, separate base(s) or dome or any other replacements or additions to the lot.
The absence of a condition report or the absence of a reference to damage in the catalogue does not imply that the lot is in good condition, working order or free from restoration or repair. Watches in water-resistant cases have no warranties that are made that the watches are currently water resistant.
Please note that we do not guarantee the authenticity of any individual component parts, such as wheels, hands, crowns, crystals, screws, bracelets and leather bands, since subsequent repairs and restoration work may have resulted in the replacement of original parts.
In addition, certain manufacturers will not service or repair pieces if all of the component parts are not original to the piece. The refusal of a manufacturer to service or repair a piece on this basis does not constitute grounds to rescind the sale under the Terms of Guarantee.
Furthermore, in reference to bands, we do not guarantee the material of manufacture.
It is the buyer's responsibility to obtain any export or import licenses and/or certificates as well as any other statutory documentation prior to shipping. The inability of import of any such items shall not justify cancellation or rescission of the sale contract or any delay in payment. Please check with the specialist department if you are uncertain as to whether a lot is subject to any restrictions on importation or exportation.
Certificate of Authenticity. Various manufacturers may not issue certificates of authenticity upon request. Except as specifically noted in the catalogue, Sotheby's Australia will not be required to furnish the purchaser with a certificate of authenticity from the manufacturer at any time. Unless the requirements fora rescission of the sale under the General Conditions of Business are satisfied, the failure of a manufacturer to issue a certificate of authenticity will not constitute grounds to rescind the sale.
Credit Cards, surcharge
Cambi Casa d'Aste Srl will be, hereinafter, referred to as 'Cambi'.
1
Sales will be awarded to the highest bidder and it is under- stood to be in 'cash'. Cambi acts as an agent on an exclusive basis in its name but on behalf of each seller, according to article 1704 of the Italian Civil Code. Sales shall be deemed concluded directly between the seller and the buyer; it follows that Cambi does not take any responsibility towards the buyer or other people, except for those concerning its agent activity. All responsibilities pursuant to the former articles 1476 and following of the Italian Civil Code continue to rest on the owners of each item.
The Auctioneer's hammer stroke defines the conclusion of the sales contract between the seller and the buyer.
2
The goods on sale are considered as second-hand goods, put up for sale as antiques. As a consequence, the definition given to the goods under clause 3 letter 'e' of Italian Consu- mer's Code (D. Lgs. 6.09.2005, n. 206) does not apply to them.
3
Before the beginning of the auction, an exposition of the items will take place, during which the Auctioneer and his repre- sentatives will be available for any clarifications. The purpose of this exposition is to allow a thorough evaluation of authenticity, attribution, condition, provenance, origin, date, age, type and quality of the lots to be auctioned and to clarify any possible typographical error or inaccuracy in the catalogue. If unable to take direct vision of the objects is possible to request condition reports (this service is only guaranteed for lots with estimate more than 500 euro).
The person interested in buying something, commits himself, before taking part to the action, to analyze it in depth, even with the help of his own expert or restorer, to be sure of all the above mentioned characteristics.
No claim will be accepted by Cambi after the sale, nor Cambi nor the seller will be held responsible for any defect concerning the information of the objects for sale.
4
The objects of the auction are sold in the conditions in which they are during the exposition, with all the possible defects and imperfections such as any cracks, restorations, omissions or substitutions. These characteristics, even if not expressly stated in the catalog, can not be considered determinants for disputes on the sale.
Antiques, for their own nature, can have been restored or modi- fied (for example over-painting): these interventions cannot be considered in any case hidden defects or fakes. As for mechanical or electrical goods, these are not verified before the selling and the purchaser buys them at his own risk. The movements of the clocks are to be considered as non verified.
5
The descriptions or illustrations of the goods included in the catalogues, leaflets and any other illustrative material, have a mere indicative character and reflect opinions, so they can be revised before the object is sold.
Cambi cannot be held responsible for mistakes or omissions concerning these descriptions nor in the case of hypothetical fakes as there is no implicit or explicit guarantee concerning the objects for sale.
Moreover, the illustrations of the objects in the catalogues or other illustrative material have the sole aim of identifying the object and cannot be considered as precise representations of the state of preservation of the object.
6
For ancient and 19th century paintings, Cambi guarantees only the period and the school in which the attributed artist lived and worked. Modern and Contemporary Art works are usually accompanied by certificates of authenticity and other documents indicated in the appropriate catalogue entries. No other certificate, appraisal or opinion requested or presented after the sale will be considered as valid grounds for objections regarding the authenticity of any works.
7
All information regarding hallmarks of metals, carats and weight of gold, diamonds and precious colored gems have to be considered purely indicative and approximate and Cambi can- not be held responsible for possible mistakes in those information nor for the falsification of precious items. Cambi does not guarantee certificates possibly annexed to precious items carried out by independent gemological laboratories, even if refe- rences to the results of these tests may be cited as information for possible buyers.
8
As for books auctions, the buyer is not be entitled to dispute any damage to bindings, foxing, wormholes, trimmed pages or plates or any other defect not affecting the integrity of the text and/or the illustrations, nor can he dispute missing indices of plates, blank pages, insertions, supplements and additions subsequent to the date of publication of the work.
The abbreviation O.N.C. indicates that the work has not been collated and, therefore, its completeness is not guaranteed.
9
Any dispute regarding the hammered objects will be decided upon between experts of Cambi and a qualified expert appointed by the party involved and must be submitted by registered return mail within fifteen days of the stroke and Cambi will decline any responsibility after this period.
A complaint that is deemed legitimate will lead simply to a refund of the amount paid, only upon the return of the item, excluding any other pretence and or expectation. If, within three months from the discovery of the defect but no later than five years from the date of the sale, the buyer has notified Cambi in writing that he has grounds for believing that the lot concerned is a fake, and only if the buyer is able to return such item free from third party rights and provided that it is in the same conditions as it was at the time of the sale, Cambi shall be entitled, in its sole discretion, to cancel the sale and disclose to the buyer the name of the seller, giving prior notice to him. Making an exception to the conditions above mentioned, Cambi will not refund the buyer if the description of the object in the catalogue was in accordance with the opinion generally accepted by scholars and experts at the time of the sale or indicated as controversial the authenticity or the attribution of the lot, and if, at the time of the lot publication, the forgery could have been recognized only with too complicated or too expensive exams, or with analysis that could have damaged the object or reduced its value.
10
The Auctioneer may accept commission bids for objects at a determined price on a mandate from clients who are not present and may formulate bids for third parties. Telephone bids may or may not be accepted according to irrevocable judgment of Cambi and transmitted to the Auctioneer at the bidder's risk. These phone bids could be registered.
11
The objects are knocked down by the Auctioneer to the highest bidder and if any dispute arises between two or more bidders, the disputed object may immediately put up for sale again starting from the last registered bid.
During the auction, the Auctioneer at his own discretion is entitled to: withdraw any lot, make bids to reach the reserve price, as agreed between Cambi and the seller, and take any action he deems suitable to the circumstances, as joining or separating lots or changing the order of sale.
12
Clients who intend to offer bids during the auction must request a "personal number" from the staff of Cambi and this number will be given to the client upon presentation of IDs, current address and, possibly, bank references or equivalent guarantees for the payment of the hammered price plus commission and/or expenses. Buyers who might not have provided ID and current address earlier must do so immediately after a knock down.
Cambi reserves the right to deny anyone, at its own discretion, the entrance in its own building and the participation to the auction, and to reject offers from unknown or unwelcome bidders, unless a deposit covering the entire value of the desired lot is raised or in any case an adequate guarantee is supplied.
After the late or nonpayment from a purchaser, Cambi will have the right to refuse any other offer from this person or his repre- sentative during the following auctions.
13
The commissions due to Cambi by the buyer are 27% of the hammer price of each lot up to an amount of ' 400.000 and 24% on any amount in excess of this sum, including VAT. Any other taxes or charges are at the buyer's expenses.
14
The buyer must make a down payment after the sale and settle the residual balance before collecting the goods at his or her risk and expense not later than ten days after the knock down. In case of total or partial nonpayment of the due amount within this deadline, Cambi can:
a) return the good to the seller and demand from the buyer the payment of the lost commission; b) act in order to obtain enforcement of compulsory payment; c) sell the object privately or during the following auction in the name and at the expenses of the highest bidder according to article 1515 of the Italian Civil Code, with the right of the compensation for damages.
After the above mentioned period, Cambi will not be held responsible towards the buyer for any deterioration and/or damage of the object(s) in question and it will have the right to apply, to each object, storage and transportation fees to and from the warehouse according to tariffs available on request. All and any risks to the goods for damage and/or loss are transfer- red to the buyer upon knock down and the buyer may have the goods only upon payment, to Cambi, of the Knock down commissions and any other taxes including fees concerning the packing, handling, transport and/or storage of the objects involved.
15
For objects subjected to notification from the State, in accordance to the D.Lgs. 22.01.2004 n. 42 (c.d. Codice dei Beni Culturali) and following changes, buyers are beholden by law to observe all existing legislative dispositions on the matter and, in case the State exercises its pre-emptive right, cannot expect from Cambi or the vendor any re-imbursement or eventual interest on commission on the knock down price already paid. The export of lots by the buyers, both resident and not resident in Italy, is regulated by the above mentioned law and the other custom, financial and tax rules in force. Export of objects more than 50 years old is subject to the release of an export license from the competent Authority. Cambi does not take any responsibility towards the purchaser as for any possible export restriction of the objects knocked down, nor concerning any possible license or certificate to be obtained according to the Italian law.
16
For all object including materials belonging to protected species as, for example, coral, ivory, turtle, crocodile, whale bones, rhinoceros horns and so on, it is necessary to obtain a CITES export license released by the Ministry for the Environment and the Safeguard of the Territory. Possible buyers are asked to get all the necessary information concerning the laws on these exports in the Countries of de- stination.
17
The 'Droit de Suite' will be paid by the seller (Italian State Law n. 663, clause 152, April 22, 1941, replaced by Decree n. 118, clause 10, February13, 2006).
18
All the valuations indicated in the catalogue are expressed in Euros and represent a mere indication. These values can be equal, superior or inferior to the reserve price of the lots agreed with the sellers.
19
These Sales Conditions, regulated by the Italian law, are silently accepted by all people talking part in the auction and are at everyone's disposal. All controversies concerning the sales activity at Cambi are regulated by the Court of Genoa.
20
According to article 13 D.Lgs. 196/2003 (Privacy Code), Cambi informs that the data received will be used to carry out the sales contracts and all other services concerning the social object of Cambi S.a.s.. The attribution of the data is optional but it is fundamental to close the contract. The registration at the auctions gives Cambi the chance to send the catalogues of the following auctions and any other information concerning its ac- tivities.
21
Any communication regarding the auction must be done by registered return mail addressed to:
Cambi Casa d'Aste
Castello Mackenzie - Mura di S. Bartolomeo 16
16122 Genova - Italy
