Shipping
Chapter I General Rules
Article 1 Poly Auction (Hong Kong) Limited as Agent
Unless otherwise stated, Poly Auction (Hong Kong) Limited acts as the Seller's agent. The closing agreement for sale of a Lot shall be a contract between the Seller and the Buyer. These Conditions of Business and all other terms, conditions and notices contained in the catalogue , announced by the Auctioneer or provided at the saleroom shall constitute the provisions agreed among the Seller, the Buyer and/or Poly Auction (Hong Kong) Limited as auction agent.
Article 2 Definitions and Interpretation
In these Conditions of Business, the following terms shall have the meanings set forth below:
(1)"Company" means Poly Auction (Hong Kong) Limited;
(2)"Seller" means any natural person, legal person or other organization that consigns a Lot(s) within the scope of these Conditions of Business to the Company for auction. In these Conditions of Business, a Seller shall include any of its agents unless as otherwise specified herein or required in a particular context;
(3)"Bidder" means any person, company, body corporate or other organization who or which considers, carries out or attempts to bid in anyway. In these Conditions of Business, a Bidder shall include any of its agents unless as otherwise specified herein or required in a particular context;
(4)"Buyer" means the Bidder whose bid or offer for a Lot is recognized by an Auctioneer as the highest bid for that Lot in an auction held by the Company, including the principal on behalf of which such Bidder acts;
(5)"Buyer's Commission" means any commission that a Buyer shall pay to the Company calculated at the rate specified herein of the Hammer Price for the Lot that such Buyer purchases;
(6)"Lot" means any item consigned by a Seller to the Company for auction and so auctioned in any auction, in particular, any item numbered in any catalogue with certain description;
(7)"Auction Date" means the date on which an auction is formally held, as announced by the Company in its public notice. In case of any discrepancy between the actual date and the announced date of an auction, the actual date shall prevail;
(8)"Sale Date" means, in an auction held by the Company, the date on which the auctioneer concludes a contract for sale between a Seller and a Buyer by way of hammer striking or any other customary manner publicly confirming the sale;
(9)"Auctioneer" means any person designated by the Company to moderate a particular auction;
(10)"Hammer Price" means the price for a Lot at which the Auctioneer decides to sell the Lot by striking the hammer or the agreed sale price in the post-auction sale;
(11)"Proceeds of Sale" means the net amount due to the Seller, being the Hammer Price less the Buyer's Commission, all expenses and other amounts payable to the Company by the Seller;
(12)"Purchase Price" means the total amount payable by the Buyer for his/her/its purchase for each Lot, including the Hammer Price, the Buyer's Commission, other Buyer's Expenses and all Buyer's Expenses arising from its failure to perform its obligations;
(13)"Buyer's Expenses" means costs and expenses in relation to sale of the Lot by the Company, including but not limited to insurance policies, packing, moving, storage, custody for the Lot, any expenses of testing, investigation, queries or authentication related to the Lot at the request of the Buyer or any additional costs and legal expenses to bring claims against a defaulting Buyer;
(14)"Reserve" means the confidential minimum selling price for the Lot that the Seller has confirmed with the Company;
(15)"Estimate" means the estimated selling price of a Lot written in the catalogue or other descriptive materials, excluding the Buyer's Commission;
(16)"Storage Fee" means the storage fee payable by the Buyer to the Company according to these Conditions of Business.
In these Conditions of Business, where the context requires, words denoting the singular shall include the plural and vice versa.
Article 3 Scope of Application
All parties participating in any auctions organized by the Company, including the Seller, the Bidder, the Buyer and all other related parties (including but not limited to the agents of the Seller, the Bidder and the Buyer) shall be deemed to accept in full and bound by these Conditions of Business, and shall comply with them in such auctions, enjoy the rights and perform the obligations provided herein.
Any Bidder who bids in an auction organized by the Company, whether in person or by authorizing an agent to bid on his/her/its behalf, whether by raising the paddle, by absentee bids, by phone or by any other means, shall be deemed to have accepted these Conditions of Business in full.
Any dispute among the parties to auctions organized by the Company shall be settled in accordance with these Conditions of Business.
Article 4 Special Notice
Bidders and Buyers participating in any auctions organized by the Company shall carefully read and be abided by these Conditions of Business; Bidders and Buyers shall read the provisions limiting the Company's liabilities and disclaimers contained in these Conditions of Business carefully. Bidders and/or their agents have the responsibilities to review the original Lot in person, and bear legal liabilities for their acts of bidding the Lot.
Upon the Auctioneer confirms the Bidder's bid by striking his/her hammer or in any other manner publicly indicating confirmation of the purchase in any auctions organized by the Company, the contract for sale regarding the Lot shall immediately enter into force and the Bidder shall become the Buyer of the Lot. The Company, the Seller and the Buyer shall acknowledge the sale of the Lot and its closing, enjoy the rights and assume the obligations provided by applicable laws and/or these Conditions of Business. Any party that fails to perform obligations shall bear its/his/her corresponding legal liabilities.
The Company may amend these Conditions of Business for a particular auction by posting announcements at the auction site or making an announcement at such auction through an Auctioneer.
Chapter II The Seller
Article 5 Consignment Procedure
When arranging for the consignment of the Seller's Lot to the Company for auction:
(1) The Seller must present a valid identity document with photo issued by the government (e.g. resident identity card or passport) if the Seller is a natural person and sign a consignment auction contract with the Company;
(2) A valid certificate of incorporation, proof of shareholding, or a legal authorization document shall be required if the Seller is a legal entity or any other organization, which shall sign a consignment auction contract with the Company.
(3) When the Seller signs a consignment auction contract with the Company, the Company shall be automatically authorized to make pictures, illustrations, catalogues, or other video images of the Lot.
Article 6 The Seller's Agent
When arranging for the consignment of the Lot to the Company for auction, the Seller's agent shall submit to the Company the relevant authorization certificates including:
(1) A valid identity document if such agent is a natural person;
(2) A valid certificate of incorporation and proof of shareholding if such agent is a legal person or any other organization; and
(3) A power of attorney duly executed. The Company has the right to examine the aforesaid documents in a lawful manner.
Article 7 The Seller's Warranties
The Seller hereby makes irrevocable warranties to the Company and the Buyer with respect to the Lot it consigns to the Company for auction as follows:
(1) The Seller has absolute ownership or legal right to dispose of the Lot. The auction of the Lot will not prejudice any legal interest (including copyright interest) of any third party, and will not violate the provisions of relevant laws and regulations;
(2) The Seller has, to the best of its knowledge, made full and complete disclosure and description to the Company with respect to the origin and any flaw of the Lot and notified the Company in writing, without any concealment or fabrication;
(3) If the Lot being consigned shall be imported into Hong Kong, the Seller shall guarantee the compliance with the laws of its origin, and ensure the completion of the export and import procedures and notify the Company in writing; and
(4) If the violation of the above warranties causes the actual owner of the Lot or any third party who claims to have right to bring any claim or action and causes the Company and/or the Buyer to suffer losses, the Seller shall compensate for all losses suffered by the Company and/or the Buyer as well as all expenses and costs incurred as a result.
Article 8 Reserve
Unless otherwise agreed upon by the Company and the Seller, all Lots are offered subject to a Reserve. The Reserve shall be determined by the Seller and the Company in writing through consultation, and no modification of the Reserve shall be made without the prior consent of the other party after it is determined by both parties. Following the bidding failure of the Lot authorized by the Seller, the Auctioneer shall have the right to sell such Lot at the Reserve after such auction and the Seller must pay the Commission to the Auctioneer. In no circumstance shall the Company bear any liability for failure to sell the Lot at the Reserve at the auction held by the Company.
Article 9 The Company's Discretion
The Company may decide the following matters at its absolute discretion:
(1) Explanation and/or appraisal of any aspect of any Lot through the catalogue of the Lot and/or news media and/or other carriers;
(2) Whether to consult any expert or not;
(3) The illustration of the Lot in the catalogue, the exhibition of the Lot and other forms of publicizing the Lot, the arrangement in the promotional activities as well as the standards of payable expenses;
(4) Suitability of a Lot for auction by the Company;
(5) Other matters such as the date of auction, the place of auction, the conditions of auction and the manner of auction.
Article 10 Lot Not Auctioned
After the Seller has signed the consignment auction contract with and delivered the Lot to the Company, if for any reason the Company believes that the Lot is not suitable for auction by the Company, the Seller shall collect the Lot within thirty days from the issuance date of the Company's notice (fees for packaging and transportation shall be at the Seller's own expense). The consignment auction contract between the Seller and the Company will terminate on the date when the Seller collects the Lot. If during the above-mentioned period the Seller fails to collect the Lot, the consignment auction contract will automatically terminate upon the expiration of such period. If within seven days after the termination of the consignment auction contract the Seller does not collect the Lot, the Company shall have the right to charge the Storage Fee, insurance fees and other reasonable expenses, and to dispose of the Lot in a way the Company deems proper. The Seller is responsible for the collection of, if any, the amount obtained from the disposal after deducting all the fees and expenses incurred by the Company.
Article 11 Suspension of Auction
The Company has the right to suspend the auction of any Lot at any time before the actual auction in any one of the following situations:
(1) The Company has an objection to the ownership or authenticity of the Lot;
(2) Any third party has an objection to the ownership or authenticity of the Lot and can provide relevant evidence materials as to the basis of such objection, pays a security pursuant to the Company's requirements and is willing to take the corresponding liabilities for the legal consequences and all losses caused by the suspension of auction;
(3) The Company has an objection to the explanation of the Seller or the accuracy of the Seller's warranty mentioned in Article 7 hereof;
(4) Any evidence proves the Seller has violated or will violate any provisions of these Conditions of Business;
(5) For any other reason, the Company believes that the auction of such Lot shall be suspended; or
(6) Whichever situation causes such suspension, if the Company is aware of any ownership or other dispute in relation to the Lot being consigned for auction, the Company shall have the right to refuse to return such Lot until the dispute is settled.
Article 12 The Seller's Withdrawal of Lot
The Seller may withdraw the Lot at any time prior to the Auction Date by issuing a written notice to the Company. In the case that the Lot has been listed in the catalogue or other public materials and they have begun to be printed at the time of the withdrawal of the Lot, the Seller shall pay an amount equal to 20% of the Reserve of the Lot and all other expenses. In the case that the catalogue or other public materials have not been printed, the Seller shall pay an amount equal to 10% of the Reserve of the Lot and all other expenses. Any dispute or claim arising out of the Seller's withdrawal of the Lot shall be borne by the Seller and has nothing to do with the Company.
Article 13 Automatic Insurance
Unless otherwise instructed by the Seller in writing, all Lots will be automatically covered under the insurance policies purchased by the Company after the Seller enters into the consignment auction contract with the Company and delivers the Lots to the Company. The insured amount shall be based on the Reserve agreed by the Seller and the Company in the consignment auction contract (if there is no Reserve, it shall be the agreed insured amount of the Lot; if the Reserve is adjusted, it shall be the original Reserve of the Lot). The insured amount is only applicable to insurance and claim for compensation, is not the Company's warranty or guarantee for the value of the Lot, and does not mean that the Lot can be sold for an amount equal to the insured amount through any auction by the Company.
Article 14 Insurance Premium
If the Lot is sold, the insurance premium payable by the Seller shall be 1% of the Hammer Price unless otherwise agreed by the Seller and the Company. If the Lot is not sold, the Seller shall as well pay the insurance premium at 1% of the Reserve.
Article 15 Insurance Period
If the Lot is sold in the auction, the insurance period shall terminate at the earlier of the seventh day after the Sale Date (including the Sale Date) and the date when the Buyer collects the Lot. If the Lot is not sold in the auction, the insurance period shall terminate upon the expiry of thirty days after the Company issues the notice on the collection of the Lot.
Article 16 Insurance by the Seller
In the event that the Seller notifies the Company in writing not to insure the Lot, it shall undertake all the risks and the following liabilities at any time (unless otherwise ruled by an arbitration institution):
(1) To compensate for any claim or action brought by any other parties against the Company with respect to the damage or destruction of the Lot;
(2) To compensate the Company and/or any other parties for all losses suffered and all expenses incurred because of the damage or destruction of the Lot caused by any reason; and
(3) To notify the compensation related provisions herein to any insurer of the Lot.
Article 17 Insurance Disclaimer
The damage or destruction of the Lot caused by natural wear, inherent flaws, internal or potential defects, change of substance itself, self-combustion, self-heating, oxidation, corrosion, leakage, rat-bite, worm-bite, change in the atmosphere (climate or air temperature), change in humidity or temperature, or other gradual changes or caused by force majeure such as earthquake, tsunami, war, hostile action, armed conflict, terrorism, coup, strike and social riot, or nuclear radiation or radioactive pollution as well as the damage or destruction of book frames, glass, drawers, bottom pads, trestles, mountings, insert pages, scroll heads or other similar accessories caused by any reason are not within the scope of insurance indemnity.
Article 18 Insurance Indemnity
Any damage or destruction of the Lot caused by incidents or disasters covered by the insurance purchased by the Company for the Lot shall be handled in accordance with the laws of Hong Kong on insurance. The Company shall pay insurance indemnities after deducting the Company's expenses (other than the Commission) to the Seller after the Company obtains such indemnities from the insurance company.
Article 19 Bidding Prohibition
The Seller shall not bid for the Lot consigned to the Company by himself/herself/itself for auction, or authorize any other person to bid on his/her/its behalf. Only the Company has the right to bid on behalf of the Seller at a price not more than the Reserve. The Seller shall bear all legal liabilities and compensate for all losses caused to the Company if the Seller violates this Article.
Article 20 Commission and Expenses
Unless otherwise agreed upon by the Seller and the Company, the Seller shall authorize the Company to deduct 10% of the Hammer Price as Commission and at the same time deduct other expenses. Despite the fact that the Company is the Seller's agent, the Seller agrees that the Company may collect the Commission and other expenses from the Buyer in accordance with the provisions in Article 49 hereof.
Article 21 Service Fee for Unsold Lot
In case the Lot is not sold because the bidding price is lower than the Reserve, the Seller shall authorize the Company to charge the Seller a service fee for unsuccessful auction and other expenses.
Article 22 Payment of Proceeds of Sale
Where the Buyer effects full payment of the Purchase Price to the Company in accordance with the provisions in Article 49 hereof, the Company shall pay the Proceeds of Sale to the Seller thirty-five days after the Sale Date in Hong Kong dollars.
Article 23 Deferred Payment
Where the Company does not receive the full payment of the Purchase Price from the Buyer upon the expiry of the payment period under Article 51 hereof, the Company will pay the Proceeds of Sale to the Seller within seven working days after receipt of full payment of the Purchase Price from the Buyer.
Article 24 Seller Taxes
The Seller shall pay taxes to the government for the Proceeds of Sale obtained. If the Company has the obligation to withhold and pay taxes according to the provisions of the relevant laws, the Company will follow the provisions of the laws. The Seller shall assist in handling all the formalities and bear the corresponding taxes and expenses.
Article 25 Assistance in the Collection of Outstanding Payment
The Seller shall, at the time of its consignment of the Lot to the Company for auction, be deemed to have authorized the Company to demand the corresponding outstanding payment from the Buyer on behalf of the Seller. Where the Buyer fails to fully pay the Purchase Price within seven days after the Sale Date (including the Sale Date), the Company shall have the right to demand the Commission and other Buyer's Expenses according to the provisions of Article 58 hereof. In addition, the Company shall as well have the right to take appropriate actions (including but not limited to resorting to legal proceedings) to assist the Seller in collecting such outstanding payment from the Buyer where it is deemed by the Company to be practicable. The above provision does not exclude the Seller's right to demand in person or authorize any third party to demand the outstanding payment from the Buyer and does not obligate the Company to demand the corresponding outstanding payment from the Buyer on behalf of the Seller under any circumstance. This Company shall not bear the corresponding liability for the Seller because of the Buyer's failure to pay the Purchase Price under any circumstance.
Article 26 The Company's Discretion
The Company shall have the right to accept the Seller's authorization (at the Seller's expenses) and may determine the following matters as the case may be:
(1) To agree on special conditions of the payment of the Purchase Price;
(2) To remove, store and insure the sold Lot;
(3) To settle claims brought by the Buyer or the Seller in accordance with the relevant articles hereof; and
(4) To take other necessary measures to collect the outstanding payment owed by the Buyer to the Seller.
Article 27 Unsold Lot
In the event that the Lot is not sold, the Company may choose any one of the following actions:
(1) Private sale after the auction
The Company may re-negotiate with the Seller on the revised Reserve and sell the Lot in private sale, and pay the Seller the Proceeds of Sales adjusted based on the revised Reserve.
(2) Re-auction
The Company may re-auction the Lot. The Commission and expenses scale set out in the previous consignment auction contract remains applicable.
(3) Collection of the Lot
The Seller shall take back the Lot within 30 days upon receipt of the Company's notice on collection (fees for packaging and transportation shall be paid by the Seller) and pay the Company the service fee for unsuccessful auction and other expenses. The Company shall, upon expiration of such time limit, be entitled to charge the Storage Fee, insurance fees and other reasonable expenses, and to sell the Lot through public auction or other means of sale according to the conditions the Company deems appropriate. The Company shall also be entitled to deduct the service fee for unsuccessful auction and other expenses payable by the Seller in the first auction as well as all expenses for re-sale of the Lot by auction from the Proceeds of Sale before paying the remaining amount to the Seller.
Article 28 Risk Assumption
The Seller shall assume liability for all risks and expenses that occur after the time limit prescribed herein if the Seller fails to take back the Lot not auctioned or the unsold Lot within such the time limit. The Seller shall assume liability for all risks and expenses of the Lot not auctioned or the unsold Lot at the earlier of the thirtieth day after the Company issues a notice on collection of the Lot to the Seller (including the notice date) and the time when the Seller collects the Lot in accordance with these Conditions of Business. Where the Seller requests Company to assist it in the return of the Lot within the time limit provided herein and the Company so agrees, the Seller shall assume liability for all risks and expenses that occur after the Lot leaves the place designated by the Company. Unless the Seller specifically gives an indication and pays insurance premium in advance, the Company has no obligation to insure the Lot for any period after its departure from the place designated by the Company. Where the Seller requests the Company to assist it in returning the Lot by means of post, express delivery or other third-party transportation, the Company shall be deemed to have returned the Lot and the Seller shall be deemed to have collected the Lot upon the Company's delivery of the Lot to the post, express delivery and transportation entities, companies or their employees/branch offices.
Chapter III The Bidder and the Buyer
Article 29 Responsibilities of the Bidder and the Company in respect of the Lot
1. The Company's perception of all Lots partly relies on the information provided by the Seller, the Company is unable and will not carry out comprehensive inspection of all Lots. Bidders are aware of this and bear the responsibilities of inspecting and testing the original Lots so that Bidders will be satisfied with those Lots in which they may be interested.
2. All Lots for sale by the Company are available for viewing by Bidders. By bidding, Bidders and/or their agents are deemed to have carried out thorough examination of the Lots, and are deemed to be satisfied with the conditions of the Lots and the accuracy of their description.
3. Bidders acknowledge that various Lots are dated long time ago and of special categories, implying that the Lots are not perfect and not free from defects. All Lots are sold on an"as is" basis at the time of the auction (whether or not Bidders attend the auction). Condition reports may be provided when during the viewing period. Under certain circumstances, catalogue descriptions and condition reports may be used for reference about certain defects of the Lots. Nevertheless, Bidders should pay attention that the Lots may have other defects not clearly stated in the catalogue descriptions and condition reports.
4. Regarding the information about the Lot provided to Bidders, including any forecast information (written or verbal), catalogues and other reports, commentaries or estimated values, such information are not statement of facts, but rather are statements of the opinion that the Company holds. Such information can be altered at the sole discretion of the Company from time to time.
5. The Company or the Seller has not made any declaration or warranty as to whether any Lot is subject to any copyright or whether the Buyer has bought the copyright of any Lot.
6. In accordance with the matters contained in Article 29 (1) to 29 (5) of the Conditions of Business and the special exemption contained in Article 30 of the Conditions of Business, the descriptions in the catalogue and in the condition reports are written in a reasonably prudent manner (and such should be in line with those terms of the Conditions of Business regarding the Company serving as Auction Agent) based on (1) the information provided by the Seller to the Company; (2) academic and technical knowledge (if any); and (3) generally accepted opinions of the relevant experts.
Article 30 The Company's Exemption and Restriction of Responsibilities to the Buyer
1. If the Company considers the Lot as forgery, it shall return the Hammer Price and Buyer's Commission to the Buyer.
2. Subject to the matters contained in Article 29 of the Conditions of Business and the rules in Article 30 (1) and 30 (5) of the Conditions of Business, the Company shall not:
(1) be responsible for any errors or omissions in the information provided by the Company to the Bidder verbally or in writing, no matter whether this is caused by negligence or other reasons, with the exception of provision contained in Article 29 (6) of the Conditions of Business;
(2) make any guarantee or warranty to the Bidder, excluding any implied warranty and rules other than the expressed warranty that the Seller has entrusted the Company to make to the Buyer (with the exception of those responsibilities that cannot be discharged according to the stipulations of laws);
(3) be accountable to any Bidder for any actions or omissions of the Company regarding the auction or the sale of any Lot (no matter whether this is caused by negligence or other reasons).
3. Unless the Company owns the Lot to be sold, it shall not be responsible for any breach of the Conditions of Business by the Seller.
4. Without affecting Article 30 (2) of these rules, any claim for compensation that the Bidder makes to the Company or the Seller shall be limited to the Hammer Price and the Buyer's Commission of the Lot. Under no circumstances shall the Company and the Seller bear any consequential losses incurred by the Buyer.
5. Article 30 of the Conditions of Business does not exempt or restrict the responsibilities of the Company regarding any misrepresentation with fraudulent element made by the Company or the Seller, nor the responsibilities of casualty or death caused by negligent acts or omissions of the Company or the Seller.
Article 31 Catalogue and other Explanation of the Lot
The Company shall prepare a catalogue of the Lot to briefly introduce the conditions of the Lot with words and/or pictures to facilitate the Bidder and Seller to participate in the auction held by the Company. The words and Estimate in the catalogue of the Lot, pictures, other images as well as public materials are only references for the Bidder and may be revised before auction. The Company provides no guarantee for the authenticity, value, tone, quality or flawlessness of the Lot.
Article 32 Uncertainty of Catalogue
Where the tone, color, graduation and shape of the Lot shown in the catalogue and/or any other illustrations, images and public materials differ from those of the original Lot due to printing, photography or other technical reasons, the original Lot shall take precedence. Any introduction and appraisal of any Lot made by the Company and its employees or its agents in anyway (including the certificate, catalogue, slideshow and news media) are only opinions for reference and do not constitute any guarantee for the Lot. The Company and its employees or its agents shall undertake no liability for any inaccuracy or omission in the aforesaid introduction or appraisal.
Article 33 Reserve and Estimate
Unless otherwise indicated, all Lots are offered subject to a Reserve. Normally, the Reserve is not higher than the lowest Estimate announced before the auction or published before the auction by the Company. If a Reserve has not been set for a Lot, unless there has already been bidding, the Auctioneer, in his or her discretion, may determine the starting price, but this shall not be higher than the lowest Estimate of the Lot before the auction.
Under no circumstances shall the Company bear any liability when the bids for a Lot do not reach the Reserve. If the bids are lower than the Reserve, the Auctioneer, in his or her discretion, may sell the Lot at a price lower than the Reserve. However under such circumstances, the amount that the Company shall pay the Seller shall be the amount that the Seller would receive as if the Lot was sold at the Reserve.
The Estimate is estimated at an earlier time before the Auction Date, it is not a confirmed selling price, and is not legally binding. Estimates cannot be used as a forecast of the Hammer Price of the Lot, and the Company has the right to revise from time to time the Estimate already made.
Article 34 Bidders' Inspection Responsibility
The Bidder and/or his/her/its agents shall have the responsibility to learn about the actual conditions of the Lot and shall be legally liable for his/her/its bid for a certain Lot. The Company strongly advises the Bidders to personally inspect the original Lot they intend to bid for before the Auction Date by authentication or other means. Bidders shall judge by themselves whether Lot complies with the descriptions in the Company's catalogue of the Lot and other images and public materials, rather than relying on the catalogue, images and public materials to make decisions.
Article 35 Registration of Bidders
If the Bidder is a natural person, before the Auction Date, he/she shall fill in and sign the registration documents with an identity document with photo issued by the government (such as resident identity card or passport), and provide proof of the current address (e.g. utility bill or bank statement); if the Bidder is a company or other organization, before the Auction Date, it shall fill in and sign the registration documents and collect a paddle with its valid certificate of incorporation and proof of shareholding and legitimate authorization document. The Company may request the Bidder to present proof of bank details or other proof of financial conditions for payment purposes.
Article 36 Paddle
The Company can announce before the Auction Date the conditions and procedures of arranging paddle for the Bidder according to different auction conditions and auction methods etc., including but not limited to the qualification and conditions for the Bidder to arrange a paddle. The Company solemnly reminds that a paddle is the only proof for the Bidder to participate in the auction at the venue. The Bidder shall keep it properly and shall not lend it to others to use it. If it is lost, it shall immediately handle the loss report formalities in a written form recognized by the Company.
No matter if the person holding a paddle has been appointed by the Bidder or not, his or her bidding acts at auction are considered as having been made by the registered person himself, and the Bidder shall bear the legal responsibilities for the acts of the former, unless the Bidder himself has already submitted a written report to the Company regarding the loss paddle.
Article 37 Auction Deposit
When a Bidder participates in an auction of the Company, he/she shall first pay the auction deposit before collecting the paddle. The amount of the auction deposit will be announced by the Company before the Auction Date, and the Company has the right to waive the auction deposit. If the Bidder fails to buy the Lot and he does not owe the Company any sum, then that auction deposit shall be returned to the Bidder in full without interest within 14 working days after the end of the auction. If the Bidder succeeds in buying a Lot, the auction deposit shall automatically be converted to the payment of the Purchase Price of the Lot.
Article 38 Discretion of the Company
The Company has the right to forbid anyone from participating in the auction organized by the Company or entering the auction site, or taking pictures or shooting videos at the auction site at its discretion.
Article 39 Handling of Abnormal Events
If any abnormal event occurs at the auction site, the Company has the right to take emergency actions. If any dispute arises at the auction site, the Company has right to mediate and settle it.
Article 40 Confirmation of Buyer's Identity
The Bidder must take good care of his/her/its paddle and be cautious not to lose it. The Bidder shall not lend his/her/its paddle to others, or the Bidder shall assume all legal liability for others' act of bidding for the Lot using his/her/its paddle.
Article 41 Absentee Bids
Bidders shall attend the auction in person. If a Bidder or its agent cannot attend in person, it can appoint the Company in writing for the Company to bid on its behalf. The Company has the discretion to accept or not accept the above appointment. Any Bidder who has appointed the Company to bid shall handle the appointment formalities within the period stipulated (no later than three business days), and produce a completed Absentee Bid Order to the Company, and at the same time pay the auction deposit according to the Conditions of Business.
If the Bidder who has appointed the Company to bid needs to cancel the absentee bid, it shall notify the Company no later than 24 hours before the Auction Date.
Article 42 Auction Results of Absentee Bid
If a Bidder who has appointed the Company to bid, the auction results and the related legal responsibilities shall be borne by the Bidder.
If the Bidder indicates in the Absentee Bid Order that it bids by instant communication methods such as telephone, it shall fill in the instant communication method accurately and keep the instant communication instrument properly, during the period in which the Company is appointed to bid, the Bidder shall use that instant communication instrument itself. Where the instant communication instrument is lost or it cannot be within control, the Bidder shall immediately use a written form recognized by the Company to change the instant communication method filled in the Absentee Bid Order. During the period the Company is appointed to bid, it shall make appropriate efforts to contact the Bidder, the bidding information transmitted by that instant communication instrument (whether or not it is transmitted by the Bidder personally or the Bidder's agent) shall be considered as transmitted by the Bidder itself, and the Bidder shall bear legal responsibilities for the actions taken by it. Unless the Buyer itself has changed the instant communication method filled in the Absentee Bid Order by a written method recognized by the Company. All telephone bids may be recorded and kept at Poly Auction (Hong Kong)'s sole discretion, by opting for telephone bids, the Bidder agrees that its phone conversation will be recorded.
Nevertheless, under no circumstances shall the Company be responsible for any unsuccessful contact or errors or omissions in the bidding process using that instant communication instrument.
Article 43 Disclaimer of Absentee Bid
Since absentee bid is a free service of transmitting bidding information that the Company provides to the Bidder, the Company and its employees shall not bear any responsibilities for unsuccessful bidding or any errors, omissions, negligence, fault or inability to bid on its behalf during the bidding process.
Article 44 First-come-first-serve Principle for Absentee Bid
If two or more Bidders appointing the Company to bid on their behalf have bid the same price for the same Lot and eventually that Lot is sold at that Hammer Price, then the one who first submitted to the Company shall be the Buyer of that Lot.
Article 45 Discretion of the Auctioneer
The Auctioneer has the right at his absolute and sole discretion in the following matters:
1. Refusal or acceptance of any bid;
2. Carrying out the auction in such a manner as he may decide;
3. Withdrawal of any Lot, dividing it for auction separately, combining any two or more Lots for auction;
4. If there are errors or disputes, no matter if they occur during or after the auction, he shall have the right to decide the successful Bidder, whether or not to continue the auction, to cancel the auction or place the Lot under dispute for auction again;
5. The Auctioneer may open and carry out the bidding at a level with bidding increments that he considers suitable, and has the right to bid on behalf of the Seller up to the amount of the Reserve, either by placing consecutive bids or by placing bids in response to other Bidders;
6. Adoption of other actions that he considers as appropriate.
Article 46 No Reserve
For those Lots without a Reserve, unless there has already been bidding, otherwise the Auctioneer, under his own discretion, may decide the starting price. If there is no bidding at such a price, the Auctioneer will, at his own discretion, lower the price and continue the auction until a Bidder starts to bid, then he will continue the auction at that price and then continue up from that amount.
Article 47 Image Display Board and Currency Conversion Board
To facilitate Bidders, the Company may use image projector or other forms of display boards in the auction. The contents shown are for reference only. It is possible that there are differences in the information such as the amount, reference number of the Lot, images of the Lot or reference foreign currency etc. shown in the image projector or other forms of display boards and the Company shall not bear any responsibilities for any losses caused by such differences.
Article 48 Successful Bid
The fact that the Auctioneer confirms the highest bid of a Bidder by striking his/her hammer or in any other manner of publicly confirming the sale shall indicate the conclusion of a sales contract for the Lot between the Bidder and the Seller.
Article 49 Commission and Expenses
After the Bidder has succeeded in bidding, it will become the Buyer of that Lot. A buyer's premium will be added to the Hammer Price and is payable by the buyer as part of the total purchase price. The buyer's premium is 18% of the hammer price of each lot and at the same time other Buyer's Expenses, and recognizes that the Company can charge the Seller the commission and other Seller expenses according to provisions of the Consignment Agreement.
Article 50 Taxes
All the monies that the Buyer pays to the Company are net amounts, which shall not include any tax on goods, tax on services or other value added tax (whether levied by Hong Kong or other regions). If there is any tax applicable to the Buyer, the Buyer shall bear it itself according to the provisions of the relevant laws currently in force.
Article 51 Payment Time
After the Lot is successfully sold in an auction, unless otherwise agreed, regardless of any stipulations of the export, import or other permits of the Lot, the Buyer shall fully pay the Purchase Price within 7 days after the Sale Date (including the Sale Date), and collect the Lot. If packing, moving costs, and insurance expenses, expenses related to export are involved, the Buyer shall pay them altogether.
Article 52 Payment Currency
All monies shall be paid in Hong Kong dollars. If the Buyer pays in another currency other than Hong Kong dollars, it shall convert it at the exchange rate agreed between the Buyer and the Company or at the exchange rate of Hong Kong dollars and that currency type on the previous working day announced by such bank as selected by the Company. All bank handling fees, commission and charges incurred by the Company for converting the foreign currency paid by the Buyer into Hong Kong dollars shall be borne by the Buyer.
Article 53 Transfer of Ownership
Even if the Company has delivered the Lot to the Buyer, the Buyer has not yet obtained the ownership of the Lot. This shall pass onto the Buyer only when the Buyer has fully paid the Purchase Price and all monies that the Buyer owes the Company.
Article 54 Transfer of Risks
After the bidding has succeeded, the risks of the Lot shall be borne by the Buyer itself after the occurrence of one of the following events (whichever earlier):
1. The Buyer has collected the Lot; or
2. The Buyer has fully paid the Purchase Price for the Lot to the Company; or
3. The expiry of seven days after the Sale Date (including the Sale Date).
Article 55 Collection of the Lot
Risk and responsibility for the lot passes to the Buyer at the expiration of thirty calendar days from the Sale Date (including the Sale Date). or on collection by the Buyer, if earlier. After thirty calendar days, all expenses incurred, including but not limited to storage, moving, insurance will be for the account of the Buyer. Although the Company shall use reasonable efforts to take care of purchased Lot and suggest handlers, packers or carriers, the company is not responsible to any person to whom we have made are commendation for the acts or omissions of the third party concerned.
Article 56 Packing, Handling and Moving
If the employees of the Company pack and handle the Lot bought on behalf of the Buyer according to the latter's requirements, this is considered as a service provided by the Company to the Buyer and the Company has the discretion to decide whether to provide this service, if any losses arise therefrom, the Buyer shall bear them itself. Under no circumstances shall the Company be responsible for any damage of the glass or picture frame, box, backing sheet, frame case, mounting, inserts, rolling rod or similar auxiliary objects caused by any reasons.
Where the Buyer requests the Company to assist it in collecting the purchased Lot (the packaging, mailing and transportation expenses shall be paid by the Buyer) by means of post, express delivery or transportation, the Company shall be deemed to have delivered the Lot and the Buyer shall be deemed to have collected such Lot according to the normal procedure upon the Company's delivery of the Lot to the post, express delivery and transportation entities, companies or their employees/branch offices. The risks arising from this process shall be borne by the Buyer. Unless Buyer gives a clear indication and pays insurance premium, no insurance is provided in the process of mailing, express delivery or transportation generally.
The Company shall undertake no liability for any error, omission, damage or destruction caused by the packaging company and post, express delivery and transportation entities or companies designated by the Buyer or recommended by the Company to the Buyer.
Article 57 Import, Export Licenses and Permit
The Buyer shall be responsible for obtaining any import and export licenses, permit for endangered animals or other aspects related to the Lot. Failure or delay in obtaining any permits required shall not be deemed as a reason for cancelling the purchase or delaying in paying the Purchase Price. The Company shall not bear any responsibilities for the failure to properly fill in or submit the required import or export documents.
If the Buyer requests the Company to apply for the import and export licenses on its behalf, the Company has the right to charge service fees for this service. However, the Company does not warrant that the import or export license will be issued. The Company and the Seller has not made declaration or warranty in respect of whether or not any Lot is subject to import and export restrictions or any embargo.
Article 58 Remedies for Non-Payment
If the Buyer fails to make full payment according to the provisions of the Conditions of Business or any payment arrangements agreed with the Company, the Company has the right to adopt one or more of the following measures:
1. After the Lot is sold, if the Buyer fails to pay the Purchase Price within 7 days from the Sale Date (including the Sale Date), the auction deposit paid at the time of bidding registration shall not be refunded, and it shall at the same time bear the relevant responsibilities according the provisions of the Conditions of Business; if the Buyer has bought a few Lots with the same paddle, after the Lots are sold, if the Buyer has not paid the Purchase Price of any of the Lots within the time stipulated, then the entire auction deposit shall not be refunded, and it shall at the same time bear the relevant responsibilities according the provisions of the Conditions of Business;
2. If the Buyer fails to pay the Purchase Prices in full to the Company within 7 days from the Sale Date (including the Sale Date), the Company has the right to appoint a third party organization to collect the entire or part of the Purchase Prices that the Buyer owes;
3. If the Buyer fails to pay the Purchase Price in full within 7 days from the Sale Date (including the Sale Date), the Company has the right to charge interest at 0.03% per day on the unpaid portion starting from the 8th day after the Sale Date until the day on which the Buyer has fully paid the monies, with the exception that the Buyer has otherwise agreed with the Company;
4. The Buyer shall bear the risks and expenses of taking out an insurance policy, moving and storing the Lot in the Company or other places;
5. To sue the Buyer or apply to Arbitration Agency for mediation, demand for compensation for all the losses due to the breach of contract by the Buyer including but not limited to economic loss, legal expenses, default penalty and pass due interest caused by the delay in payment or refusal to make payments by the Buyer;
6. To retain that or any other Lot that the same Buyer has bought via the Company, and any other properties or rights to property of the Buyer that the Company holds for any reasons, all the expenses and/or risks incurred during the retention period shall be borne by the Buyer. If the Buyer fails to perform all its duties concerned within the period specified by the Company, the Company has the right to issue a lien notice tothe Buyer and dispose of the items under lien if the Buyer has not yet fully paid all outstanding amounts within 30 days after the issue of that notice. if the items under lien are insufficient to offset all the monies payable by the Buyer to the Company, the Company has the right to claim them;
7. The Company has sole discretion to cancel the sale or agree that the Consignor can cancel the deal, and reserve the right to claim all the losses suffered by the Company due to the cancellation of that deal;
8. The Company can place the Lot for auction again or sell it by other means according to the provisions of the Conditions of Business with the consent of the Seller, and the Company reserves the right to decide the Estimate and Reserve. The original Buyer shall pay the commission and other Buyer's Expenses and the Seller in the first auction, and it shall bear all the costs of the second auction or the sale of the Lot by other means. If the price obtained from the second auction or the sale of the Lot by other means is lower than the original auction sum, the original Buyer shall pay the shortfall;
9. To offset any monies related to the Lot that the Buyer owes the Company by any sums that the Company owes the Buyer in any other transactions;
10. The Company can decide to use any monies paid by the Buyer to repay any sums that the Buyer owes the Company in any other transactions;
11. To reject any bids made by the Buyer or its agent at future auctions, or to obtain auction deposit before accepting any bids;
12. To disclose the information of the Buyer to the Seller, so that the Seller can start a law suit to recover the outstanding amount, or claim damages and claim legal fees for breach of contract by the Buyer.
ARTICLE 59 REMEDIES FOR DELAY IN COLLECTING THE LOT
If the Buyer fails to collect the purchased Lot 7 days after the Sale Date (including the Sale Date), the Company has the right to adopt one or more of the measures below:
1. All costs (including but not limited to the storage fee calculated and charged according to the provisions of the Bidder Registration Order starting from the 31st day from the Sale Date (including the Sale Date) and/or risks for the taking out of an insurance policy and/or storing the Lot in the Company or other places shall be borne by the Buyer. Only after the Buyer has paid the full amount of the Purchase Price, it can collect the Lot (packing and moving costs, insurance expenses, expenses related to export shall be at the Buyer's expense);
2. The Buyer shall bear all the risks and expenses incurred after the deadline as stated in the Conditions of Business if it cannot collect the Lot concerned within that deadline. If the Buyer has not yet collected the Lot within 30 days from the Sale Date (including the Sale Date), after notifying the Buyer, the Company has the right to sell that Lot in a public auction or by a method and with methods and conditions that it considers suitable. Any proceeds after the deduction of all the losses, expenses (packing & moving costs, insurance costs, expenses related to export, Storage Fee, and notarial expenses etc.) incurred by the Company from the disposal shall be taken back by the Buyer; such balance is non-interest-bearing. If the Buyer fails to take the proceeds back two years after the Sale Date, the balance shall be deposited to a Hong Kong court by the Company after deducting the relevant expenses (including legal fees).
Article 60 Limited Warranty
1. The Company provides general warranty to the Buyer:
If the Lot sold by the Company is later found to be a counterfeit, the Company will cancel that deal according to the terms of the Conditions of Business, and will return to the Buyer in the currency of the original deal the Hammer Price together with the Buyer's Commission that the Buyer has paid to the Company for the Lot. In this regard, based on the reasonable opinion of the Company, counterfeits refer to frauds in various aspects such as the source, place of origin, date, production year, duration, culture or sources etc. of the article, and the correct description of the above points have not been recorded in the contents of the catalogue (any special terminologies are taken into consideration). Any damage and/or any type of restored item and/or repaired items (including repainting or painting on top of it) of the Lot shall not be considered as counterfeit.
Please pay attention that if any of the following situations happens, this warranty shall not apply; The contents of the catalogue are based on generally accepted opinion of academics and specialists on the selling date, or contradictions in opinions are shown in the contents of the catalogue; or
On the selling date, the only method of proving the Lot is a counterfeit is not a method which can be used in general; which is recognized; which is extremely high price; the usage of such method is impractical; or this method may have caused damage to the Lot or may (according to the reasonable opinion of the Company) have already caused the Lot to lose value; or
If the Lot has not lost any material value from the description of the Lot.
2. The deadline in this warranty is 5 years from the Auction Date concerned, these benefits are exclusively enjoyed by the Buyer, and shall not be transferred to any third party. In order to make claims based on this warranty, the Buyer shall:-(1) notify the Company in writing within one month after the receipt of any information which leads the Buyer to doubt the authenticity or attributes of the Lot, specifying the reference number of the Lot, date on which the Lot is purchased and reasons for which it is considered as counterfeit; (2) return the Lot to the Company in the same conditions as it was on the date of sale, and the proper ownership of it is transferrable, plus there are no claims from any third party after the Sale Date.
3. Regarding South eastern Asian modern and contemporary art, Chinese painting and Chinese calligraphy and Chinese ink painting, although at present the academic sector does not permit the making of definitive statements, the Company reserves the discretion to cancel those deals of Lots which are proved to be counterfeit south eastern Asian modern and contemporary arts, Chinese painting and Chinese calligraphy and Chinese ink paintings within one year after the Auction Date based on this warranty. Paid sums shall be returned to the Buyer according to this term, however the Buyer shall provide evidences (based on the methods provided for in clause 2 and 4 of this article) to prove that the Lot is counterfeit within one year from the Auction Date;
4. The Company can, at its discretion, decide to waive any of the above provisions. The Company has the right to demand from the Buyer two independent specialist reports which are recognized by the specialist sector concerned and which are accepted by the Company and the Buyer at the expense of the Buyer. The Company shall not be subject to any report presented by the Buyer, and retains the right to seek additional expert opinion at the expense of the Company.
Chapter IV Miscellaneous
Article 61 Obtaining Information,
Video-Taking
In connection with the operation of the auction business of the Company, the Company may make audio recording, video recording of any auction process, and need to collect personal information from the Bidder or ask for the information of the Bidder from third parties (such as asking for credit review from banks). Such information will be handled and kept confidential by the Company. However the information concerned may be provided to the Company, its divisions, affiliates and subsidiaries in order to assist the Company to provide comprehensive services to Bidders, carry out client analysis, or in order to provide services that meet the requirements of the Bidder. For the sake of the interest of the Bidder, the Company may also provide some personal information of the Bidder to third party service providers (such as cargo liners or storage houses). By participating in the auction of the Company, the Bidder agrees to all previously stated disclosure. If the Bidder would like to obtain or amend his personal information, please contact the customer service department.
Article 62 Confidentiality
The Company shall be obligated to keep confidentiality for the Seller, the Bidder and the Buyer and protect the legitimate rights of the Seller, the Bidder, the Buyer as well as the Company according to these Conditions of Business and the laws of Hong Kong. With below exceptions:
1.To any related parties as the Company considers appropriate with the obligations to maintain the confidentiality of the information extended;
2.To whom information is requested to be disclosed by any court, jurisdiction, governmental, banking, taxation or other regulatory authority, or by any applicable law or regulation;
3.Being agreed by relevant seller, bidder or buyer.
Article 63 Authentication Right
The Company may authenticate the Lot if necessary. In case of any discrepancy between the authentication conclusion and the conditions of the Lot in the consignment auction contract, the Company shall have the right to request modification or rescission of the consignment auction contract.
Article 64 Copyright
The Seller authorizes the Company to produce photos, illustrations, catalogue, video products and advertising materials in other forms of the Lot that it has appointed the Company to place for auction, the Company is entitled to the above photos, illustrations, catalogue, video products and advertising materials in other forms of the Lot, and has the right to use them. Without prior written consent of the Company, the Buyer and anyone shall not use them. The Company and the Seller have not made any statement and warranty as to whether the Lot is restricted by copyright or if the Buyer has obtained any copyright of the Lot.
Article 65 Exemption from Liability
Being an agent of the Seller, the Company shall assume no liability for any breach of contract by the Seller or the Buyer. In case of the breach of contract by the Seller or the Buyer, the Company shall have the right to decide to disclose the other party's name and address to the Seller or the Buyer at its own discretion so that the damaged party may receive compensation for damages through legal proceedings. However, prior to the Company's disclosure of such materials to the Seller or the Buyer, the Company shall take the reasonable steps to notify the party whose materials are to be disclosed.
Buyers and sellers have to bear liabilities arisen from transactions including but not limited to, economic, legal, tax and settlement and other related responsibilities, and have to ensure transactions not relate to money laundering or other illegal benefit transfers. Any receive or payment instruction must be clear and direct, the Company shall assume no liability for losses arisen from account stolen, misappropriation of funds and other unforeseen circumstances resulting from mismanagement of sellers or buyers.
Article 66 Notice
The Bidder and the Buyer shall inform the Company their permanent and effective correspondent address and contact methods in the bidding registration documents or by other methods recognized by the Company. If there are changes, they shall inform the Company in writing immediately.
The notices mentioned in the Conditions of Business only refer to written notices sent by letter or fax formats. A notice shall be deemed as served at the following moment:
1. If it is served by hand, when it reaches the address of the party concerned;
2. If it is sent by post, then it is the seventh day after it is posted;
3. If it is sent by fax, then it is the moment the outgoing fax transmission is confirmed by the fax machine.
Article 67 Severability
If any terms or parts of the Conditions are confirmed as void, illegal or cannot be executed, other terms or parts of the Conditions are still valid, the parties concerned shall abid by and execute them.
Article 68 Laws and Jurisdiction
The Conditions of Business and the related matters, transactions, any disputes caused by or in connection with the participation in the auction activities of the Company pursuant to the Conditions of Business shall be subject to Hong Kong laws and shall be interpreted by Hong Kong laws. The Company and the Buyer and the Bidder shall submit to the exclusive jurisdiction of Hong Kong courts. Adjudication(s) promulgated by Hong Kong courts on any disputes arising from the Conditions of Business and related matters can be enforced in People's Republic of China.
Article 69 Language
The Chinese version of the Conditions of Business shall be the standard texts; the English version is for reference only.
Should there be any discrepancy between the English version and Chinese version, the Chinese version shall prevail.
Article 70 Ownership of the Copyright of the Conditions
The Conditions of Business is prepared and revised by the Company, the copyright concerned belongs to the Company. Without the prior written approval of the Company, no one shall use any methods or means to use the Conditions of Business to obtain business benefits, and shall not make duplication, of any parts of the Conditions of Business.
Article 71 Applicable Period
The Conditions of Business is only applicable for this auction. The Company may update the Conditions of Business from time to time, when the Bidder and the Buyer participate in another auction, the then applicable Conditions of Business shall prevail.
Article 72 Right of Interpretation
The right of interpretation in respect of the Conditions of Business, Important Notice, Explanation of Cataloguing Practice, Important Notice about Bidding Registration, Important Notice about Payment, and all other documents such as the terms, conditions, notices, forms etc. contained in this catalogue, announced by the auctioneer or provided at the sales room, shall be exercised by our company.
