Terms and Conditions
(1) INFORMATION FOR BUYERS AT AUCTIONS
1.
Introduction. The following notes are intended
to assist bidders and buyers, particularly those who are inexperienced or new
to our salerooms. All of our auctions are governed by our Conditions of
Business incorporating the Terms of Consignment (primarily applicable to
sellers), the Terms of Sale (primarily applicable to bidders and buyers) and
any notices that are displayed in our salerooms or announced by the auctioneer
at the auction. Our Conditions of Business are available for inspection at our
salerooms and on our website: www.tooveys.com. Our staff will be happy to help
you if there is anything in our Conditions of Business that you do not fully
understand.
Please make sure that you read our
Terms of Sale set on our website carefully before bidding in the auction. If
your bid is successful, you will be obliged to comply with our Terms of Sale. A
printed copy of our Terms of Sale is available on request.
2.
Agency. As auctioneers,
we usually act on behalf of the seller whose identity, for reasons of
confidentiality, is not normally disclosed. If you buy at auction, your
contract for your purchase of the goods is with the seller, not with us as
auctioneer.
3.
Estimates. Estimates are
designed to help you gauge what sort of sum might be involved for the purchase
of a particular lot. Estimates may change and should not be thought of as the lot’s
value or predicted sale price. The lower estimate may represent the reserve
price (the minimum price for which a lot may be sold) and will not be below the
reserve price. Estimates do not include the buyer’s premium or VAT (where
chargeable). Estimates are prepared some time before the auction and may be
altered by a saleroom notice or announcement by the auctioneer before the
auction of the lot; they represent a matter of opinion and are not definitive.
4.
Buyer’s Premium. The Terms of
Sale oblige you to pay a buyer’s premium at 25% on the hammer price of each lot
purchased. In addition, VAT at the current rate is payable on the premium (see
below for further information).
5.
VAT. VAT rules are
complicated and you should take specialist advice if you are uncertain about
their effect. The following paragraphs explain the VAT symbols used in our
catalogues.
5.1.
Items in our catalogue may be marked
in the following ways:
a.
Lots which do not display one of the
below symbols (referred to herein as unmarked lots) have no VAT payable on the
hammer price. This is because such lots are sold using the Auctioneers’ Margin
Scheme. Therefore, an amount in lieu of VAT at the
standard rate is included within the premium and will not be shown separately
on our invoice or be recoverable as input tax.
b.
(*)
indicates that VAT is payable by the buyer on both the hammer price and the
buyer’s premium. VAT will be chargeable at the standard rate (presently 20%)
for most lots. Qualifying books will be charged at 0%. This imposition of VAT
is likely to be because the seller is registered for VAT within the UK and is
not operating the Dealers’ Margin Scheme on their consignment to us.
c.
(**)
indicates that the lot has been imported from outside the UK using customs
Temporary Admissions procedures. Import VAT of 5% (reduced rate due to nature
of the lot) is due on the hammer price and an amount in lieu of VAT at 20% will
be included in the buyer’s premium. This VAT on the buyer’s premium cannot be
itemised separately on our invoices. The successful bidder and therefore buyer
of the lot will become its importer.
d.
(!)
indicates that the lot has been imported from outside the UK using customs
Temporary Admissions procedures. Import VAT of 20% (higher rate) is due on the
hammer price and an amount in lieu of VAT at 20% will be included in the
buyer’s premium. This VAT on the buyer’s premium cannot be itemised separately
on our invoices. The successful bidder and therefore buyer of the lot will
become its importer.
5.2.
For the items marked (**) or (!), buyers
registered for VAT in the UK should notify us as soon as possible after the
sale so that we can correctly instruct our shipping agents to complete the
import into the UK under the buyer’s VAT registration and HMRC can issue a form
C79. The charge on our invoice for the import VAT is not sufficient evidence to
make a claim for the import VAT.
6.
Refunds of VAT
a.
registered to bid with an address
outside the UK; and
b.
discussed with us the proof of
export we require and the timeframes to complete the export.
6.2.
Once we are satisfied that the requirements
referred to in Clause 6.1 have been met, and with the proof
of export provided, the following VAT will be refunded:
a.
For lots marked (*): The VAT on the
hammer price and on the buyer’s premium.
b.
For lots marked (**) and (!): the
import VAT and, for non-UK business customers only, the VAT in lieu in the buyer’s
premium.
c.
For unmarked lots: the amount in
lieu of VAT in the buyer’s premium.
6.3.
To enable us to refund the VAT
charged correctly, we normally require the use of international shippers to
assist with the required paperwork. For private buyers, we will only be able to
refund the VAT if our shippers are used for the export of the lot outside the
UK.
7.
Reinvoicing Sales. For
unmarked lots, you can request a lot to be reinvoiced outside the Auctioneers’
Margin Scheme. VAT at 20% will be charged on the hammer price and the VAT on
the buyer’s premium will be itemised separately on our invoice. This will
enable a VAT registered business to reclaim all the VAT. Please note that the
item will no longer be eligible to be sold in the Margin Scheme. We recommend
you seek advice before proceeding. Requests must be made within 21 working days
of the sale and certain conditions apply.
8.
Inspection
of goods by the buyer. Caveat Emptor (let the buyer
beware). As we act on behalf of the seller, we are dependent on information
provided by the seller about their goods. We may inspect Lots and will act
reasonably in taking a general view about them. We will, upon request, provide
more detailed condition reports on a specific lot or lots, but we cannot
guarantee that these examinations will be in the way a buyer would do. You will
have ample opportunity to inspect the goods. You must inspect and investigate Lots
that you might wish to bid for. Please
carefully note the exclusion of
liability for the condition of Lots
set out in the Terms of Sale at Clause 13.4.
9.
Goods with electrical components.
These are sold as “antiques” for their historical and decorative attributes,
and for collection and display only. They are not intended for use. If
you buy goods with electrical components and intend to use them, you must ask a
qualified electrician to check them for compliance with safety regulations
before you use them.
10.
Endangered species. If you intend to
buy goods which contain endangered species, you need to find out if there is a
prohibition on the purchase of goods of that character. For goods containing marine
or elephant ivory, you also need to satisfy yourself that they have been
correctly registered or certified and meet the exemption conditions under
applicable legislation.
11.
Export of goods. If
you intend to export goods you must find out:
a.
whether an export licence is needed;
and
b.
if there is a prohibition on exporting
goods of that character outside of the UK or on importing goods of that
character in your intended country of import, such as because the goods contain
prohibited materials such as elephant ivory or protected flora and fauna.
12.
Bidding.
Bidders will be required to register with us before the auction starts. We
reserve the right to impose a deadline prior to the auction by which you must
register or by which we must receive a commission bid. If you wish to bid on
high value lots this deadline may be several days before the auction in order
to allow us sufficient time to carry out the necessary checks. Lots will be
invoiced to the name and address on the registration form. Please enquire in
advance about our arrangements for telephone or online bidding. Please note
that we may refuse to register you if you do not provide us with all the
information and documentation that we ask for or at our sole discretion. We may
refuse to accept any bid at our sole discretion.
Bidding
Platforms. Bidders using an independent bidding platform or service should note that the platform
may impose an additional fee or charge, which will be added to the total amount
payable in the event your bid is successful. Please refer to the terms and
conditions on the relevant independent platform for rates.
13.
Financial
Checks. As auctioneers, we may have to conduct various checks into
our customers under the Money Laundering, Terrorist Financing and Transfer of
Funds (Information on the Payer) Regulations 2017 (as amended), under sanctions
legislation and other related legislation. Unless we confirm we already have
this information, on registration to bid you will be required to provide the
following:
a.
For individuals, official photo
identification (driving licence, passport or equivalent) and proof of address
(if this is not included in your ID document).
b.
For corporate entities, the
certificate of incorporation (or equivalent) with the entity’s official name,
registered number (if any) and registered address, as well as details and ID
documentation for directors and beneficial owners of the entity.
c.
For trusts and estates, details and
ID documentation for executors/trustees and details of beneficiaries: please
contact us for further information.
13.1. You
may be asked for further information if we deem this necessary.
13.2.
If you are bidding for another
person (your “principal”) you will be required to provide the above information
for yourself and your principal, along with a signed letter from your principal
authorising you to bid on their behalf.
13.3.
Further information about ID
requirements is available by emailing auctions@tooveys.com or by telephoning
01903 891955. If we deem that you have not provided sufficient information for
us to complete our anti-money laundering, terrorist financing and sanctions checks
to our satisfaction, we may refuse to register you to bid and we may postpone
completion of, or cancel any contract made by you and the Seller in the event
you have made a successful bid.
14.
Commission
bidding. You may leave commission bids with us indicating the
maximum amount to be bid against a lot (excluding the buyer’s premium and/or
any applicable VAT). We will execute commission bids as cheaply as possible
having regard to the reserve (if any) and competing bids. If two buyers submit
identical commission bids, we may prefer the first bid received (where this can
be reasonably ascertained). Please enquire in advance about our arrangements
for the leaving of commission bids by telephone or email or via our website or
online bidding platform.
Payment. Payment is
accepted in GB Pounds only by cash, card, or bank transfer. Buyers will be held
liable for any expenses arising from their method of payment. There is an upper
limit of 10,000 euros equivalent for cash transactions.
Payment
by card. We accept debit and credit cards
bearing the ‘VISA’, ‘V PAY’, ‘MasterCard, ‘Maestro’, ‘Discover’, ‘Diners Club
International’ and ‘American Express’ symbols.
Card-not-present
transactions. The maximum debit or credit card
payment accepted over the phone is £2,500. Multiple card-not-present payments
to cover an invoice total in excess of £2,500 are not accepted.
Card-not-present transactions are subject to our compliance requirements and are
only accepted from buyers whose cards are registered to a UK address which
receives a full AVS match (Address Verification System). It is not possible to
make card-not-present payments by V PAY card.
Our
bank details for transfers. Bank: Lloyds Bank plc. Branch
Name: South Street Worthing. Branch Address: 41 South Street, Worthing, West
Sussex BN11 3AU. Branch Sort Code: 30-99-93. Account Number: 00219960. Account
Name: Rupert Toovey & Co Ltd Clients Auction. BIC: LOYDGB21132. IBAN: GB75
LOYD 3099 9300 2199 60. Please ensure you pay all bank charges, so that the
correct amount reaches our account.
16.
Collection
and storage. Please note what the Terms of Sale say about
collection and storage. It is important that you pay for and collect goods
promptly. Any delay may involve you having to pay storage charges.
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(2) TERMS OF CONSIGNMENT
Both the sale of goods at our
auctions and your relationship with us are governed by the Terms of Consignment
(primarily applicable to sellers), the Terms of Sale (primarily applicable to
bidders and buyers) and any notices displayed in the saleroom or announced by
us at the auction (collectively, the “Conditions of Business”). The Terms of
Consignment and Terms of Sale are available at our saleroom on request.
Please read these Terms of
Consignment carefully. Please note that if you (or another person acting on
your behalf) provide goods to us to sell on your behalf at our auction, this
signifies that you agree to and will comply with these Terms of Consignment.
Please note that these Terms of
Consignment relate to auctions held at our premises only. We have separate
terms for online-only auctions.
1.
Definitions
and interpretation
1.1.
To make these Terms of Consignment
easier to read, we have given the following words a specific meaning:
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means Rupert Toovey & Co Ltd
trading as Toovey’s, a company registered in England and Wales with
registration number 2994075 and whose registered office is located at
Toovey’s, Spring Gardens, Washington, West Sussex, RH20 3BS or its authorised
auctioneer, as appropriate; |
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“Art
Market Participant” |
means
an art market business registered with HMRC under the Money Laundering,
Terrorist Financing and Transfer of Funds (Information on the Payer)
Regulations 2017 (as amended); |
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“Bidder” |
means a person who places an offer (called
a “bid”) for Goods at our auction; |
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“Buyer” |
means the person who makes the highest
bid for the Goods accepted by the Auctioneer; |
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Commission” |
means the fee that we charge you on the
sale of the Goods as set out in Clause 5 below; |
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“Consumer” |
means an individual acting for purposes
which are wholly or mainly outside that individual’s trade, business, craft
or profession; |
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“Deliberate
Forgery” |
means: (a) an imitation made with the
intention of deceiving as to authorship, origin, date, age, period, culture
or source; (b) which is described in the catalogue as being the work of a
particular creator without qualification; and (c) which at the date of the
auction had a value materially less than it would have had if it had been as
described; |
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“FCA” |
means the Financial Conduct Authority; |
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“Goods” |
means the goods that you consign to us
for sale at our auction; |
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“Hammer Price” |
means the level of the
highest bid for the Goods accepted by the Auctioneer by the fall of the
hammer; |
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“Money
Laundering Legislation” |
means the Money
Laundering, Terrorist Financing and Transfer of Funds (Information on the
Payer) Regulations 2017 (as amended) and related legislation, together with
any applicable terrorist financing legislation and legislation on Restrictive
Measures; |
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“Premium” |
means the fee charged to the Buyer on
the sale of the Goods in accordance with the Terms of Sale; |
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“Price” |
means the total of the Hammer Price,
Premium and any applicable VAT; |
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“Principal” |
means
a person or entity you are acting on behalf of for the purposes of the
consignment of the Goods to the Auctioneer; |
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“Proceeds” |
means the Price less the Commission,
the Premium, any expenses incurred to your account and any applicable VAT; |
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“Reserve” |
means the minimum price at which the
Goods may be sold; |
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“Restrictive
Measures” |
means
economic or financial sanctions, export controls, embargoes or any other
restriction on trade under the laws of the European Union, the United Kingdom
or the United States, or in the jurisdiction in which you, your Principal, or any agent acting for you does business; |
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“Seller” |
means the owner of the Goods and any
agent who consigns the Goods for sale on the owner’s behalf (if applicable); |
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“Terms
of Consignment” |
means these terms of consignment; |
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“Trader” |
means a Seller who is acting for
purposes relating to that Seller’s trade, business, craft or profession,
whether acting personally or through another person acting in the trader’s
name or on the trader’s behalf (such as an agent and/or the Auctioneer); |
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“VAT” |
means any Value Added Tax or equivalent
sales tax; |
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“Website” |
means our website available at
www.tooveys.com. |
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1.2.
In these Terms of Consignment
the words “you”, “yours”, etc. refer to the Seller. The words “we”, “us”, “our”
etc. refer to the Auctioneer. All obligations that apply to the Seller under
these Terms of Consignment shall apply to the owner of the Goods and their
agent, jointly and separately. Any reference to a ‘Clause’ is to a clause of
these Terms of Consignment unless stated otherwise.
2.
Information
that we are required to give to Consumers
2.1.
A description of the main
characteristics of the auction-related services that we are providing to you as
set out in these Terms of Consignment or otherwise agreed with you in writing.
2.2.
Our name, address and contact
details as set out in these Terms of Consignment and/or on our Website.
2.3.
The rate at which we will charge you
the Commission plus any applicable VAT on the sale of the Goods as set out in
Clause 5.
2.4.
The fee that we will charge you plus
any applicable VAT as set out in Clause 18 if either the Goods are unsold at
auction or the Goods are withdrawn by you from the auction after the Goods have
been catalogued and/or marketed by us prior to the auction in any way.
2.5.
The arrangements for collection of
any unsold Goods are set out in Clauses 18 and 20 and terms regarding payment of any
Proceeds due to you in Clause 17.
2.6.
If you have any complaints, please
get in contact with us using the contact details set out on our Website.
3.
Procedure
for consigning Goods for sale at auction
3.1.
If you consign Goods to us for sale
at auction, you will need to provide us with the following information about
you, in a form acceptable to us:
3.1.1.
Your legal name and proof of
identity (as set out in Clause 3.2) and other information as we may
require to conduct such checks under the Money Laundering Legislation as we
deem necessary;
3.1.2.
Information about the Goods (as set
out in Clause 12);
3.1.3.
Your bank account details;
3.1.4.
Your address and contact details;
3.1.5.
Your VAT registration number (if
applicable); and
3.1.6.
Your confirmation of whether you are
selling the Goods as a Trader or as a Consumer.
3.2.1.
For individuals, official photo
identification (driving licence, passport or equivalent) and proof of address
(if this is not included in your ID document).
3.2.2.
For corporate entities, the
certificate of incorporation (or equivalent) with the entity’s official name,
registered number (if any) and registered address, as well as details and ID
documentation for directors and beneficial owners of the entity.
3.2.3.
For trusts and estates, details and
ID documentation for executors/trustees and details of beneficiaries; for
further information please contact us at auctions@tooveys.com.
3.2.4.
You may be asked for further
information if we deem this necessary.
3.3.
If you are
consigning goods for another person (your Principal) you will be required to
provide the above information (as applicable) for yourself and your Principal,
along with a signed letter from your Principal authorising you to consign those
goods, and if you are bidding on behalf of someone who is not the ultimate
owner of the Goods, you will be required to provide us with all information on
the ultimate owner(s) of the Goods we may require to satisfy our checks under
the Money Laundering Legislation.
3.4.
If you do not provide us with, by
any stated deadline, or we are not satisfied with any of the information
received from you, we may refuse to accept consignment of your Goods for sale
in our auction and we may postpone or cancel the contract for sale between you
and a successful bidder.
3.5.
We reserve the right, in our discretion, to reveal
your identity and contact details (or that of your Principal)
to the Buyer, for regulatory purposes.
3.6.
You must provide the Goods to us by
any stated deadline (at your expense). We may be able to assist you with this
process but any liability incurred to a carrier for haulage charges is solely
your responsibility.
4.
The
contract between you and the Buyer
4.1.
The contract between you and the
Buyer will be formed when the hammer falls accepting the highest bid for the
Goods at the auction.
4.2.
You may directly enforce any terms
in the Terms of Sale against a Buyer and/or a Bidder to the extent that you
have suffered damages and/or loss as a result of the Buyer and/or the Bidder’s
breach of the Terms of Sale.
4.3.
If you breach these Terms of
Consignment, you may be responsible for damages and/or losses suffered by a
Buyer, Bidder and/or by us. If we are contacted by a Buyer and/or a Bidder who
wishes to bring a claim against you, we may in our discretion provide the Buyer
and/or Bidder with information or assistance in relation to that claim.
4.4.
We normally act as an agent only and
will not have any responsibility for default by you or the Buyer.
4.5.
We may delay completion of, or
cancel, any contract for sale where (i) we have not
completed our enquiries pursuant to the Money Laundering Legislation to our
satisfaction, (ii) we have concerns about the Buyer in relation to the Money
Laundering Legislation, or (iii) we have reason to believe that the transaction
might be unlawful for any reason, or that the sale might put us under any civil
or criminal liability.
5.1.
We will charge you a commission on
the sale of the Goods calculated as a percentage of the Hammer Price at the
following rate: 15% plus VAT (18% inclusive of a VAT of 20%)
5.2.
Our sales are normally conducted
under HMRC’s VAT rules for the Auctioneers’ Margin Scheme. Under this scheme we
will charge an amount in lieu of VAT at the standard rate on our Commission.
This VAT will not be separately itemised on our statement to you and is not
reclaimable. For the sale of qualifying books and other zero-rated items, the
rate of VAT will be 0%.
6.
Loss
and Damage to Goods
6.1.
We are not authorised by the FCA to
provide insurance to you. However, subject only to Clause 6.4, we accept contractual
liability for Goods from the time we take possession of the Goods until title passes to the Buyer.
6.2.
Our liability for Goods is limited
to our mid pre-sale estimate for the lot before the sale, or if the lot is
unsold, or
the Hammer Price if the lot has sold.
6.3.
You should note that Goods are sold
as antiques, for their decorative attributes, and are often of considerable age
and uncertain manufacture; the liability accepted by us in Clause 6.1 does not
include any liability for loss or damage to the Goods that is either caused by
or results from any inherent vice or defect affecting the Goods, or from: (i) acts of God, flood, drought,
earthquake or other natural disaster; (i) acts of
terrorism, civil commotion, riots or war; or (iii) nuclear, chemical or
biological contamination.
6.4.
If you (or your agent) instruct us
in writing not to assume liability for Goods, the Goods remain entirely at your
risk unless and until the Goods pass to the Buyer or are collected by you or on
your behalf. In this case Clauses 6.1 to 6.3 will not apply.
7.
Photographs
The cost of any photographs of your Goods produced for the online
auction catalogue forms part of the lotting charge. We reserve the right to
photograph all Goods unless you specifically request us in writing not to. The
copyright in such photographs will be owned by us, along with the text and
layout of any auction catalogue.
8.
Minimum
bids and our discretion
Goods will normally be offered subject to a Reserve agreed
between you and us before the auction in accordance with Clause 9. If you
specifically give us a “discretion”, we may accept a bid of up to 15% below
the formal Reserve.
9.
Reserves
9.2.
Where we are instructed to sell items without reserve,
we will sell the lot for the highest price bid but not for less than £25.
9.3.
Once we have agreed a Reserve, this
cannot be changed except with your and our consent.
9.4.
Where a Reserve has been agreed,
only we may bid on your behalf and only up to one bid below the Reserve (if
any), and you may in no circumstances bid personally for Goods consigned by you
or ask anyone else to bid on your behalf for such Goods.
9.5.
We reserve the right to sell at a
‘hammer price’ below the reserve, but in any such case the sale proceeds to the
seller shall be the same as if the lot had sold at the reserve.
10.
Electrical
items
10.1.
You must test any electrical items
that you wish to consign to us for sale using external contractors. We will not
accept any Goods that are not certified as safe by an electrician, unless they
are antiques.
10.2.
If we notify you that we will not
accept uncertified electrical Goods, you must remove such Goods promptly at
your expense following such notification. If you do not collect the Goods
within seven days of our written notice to do so, we may dispose of the Goods
at your expense.
11.
Unsafe
Goods
If
in our opinion any of your Goods, in particular those which are soft
furnishings, infringe safety regulations, we have the right not to offer these
Goods for sale. You must remove such Goods at your expense. If you do not
collect such Goods within seven days of our written notice to do so, we
may dispose of the Goods at your expense.
12.
Warranties
and information about the Goods
12.1.
You must provide us with all
information that you have relating to the provenance, export/import history,
condition, attribution, authenticity and VAT status of the Goods (and any
additional information that may be relevant).
12.2.
If you are consigning Goods
containing or made of marine or elephant ivory, you must provide us with the
exemption certificate or proof of registration of the Goods on the relevant
government website (or through alternative postal and telephone methods
prescribed by the government), as applicable. In the absence of such proof,
Toovey’s will register such items on behalf of the Seller, but the fee of £20
will be passed on whether the item is sold or unsold. The exemption certificate
(if applicable) shall be passed to the Buyer upon transfer of ownership to the
Buyer in accordance with the Terms of Sale.
12.3.
In addition to any warranties
implied by law, you warrant, and where you are acting on behalf of someone
else, you will procure that your Principal warrants, to us and the Buyer that:
12.3.1.
Any information or documentation that
you provide in relation to the Goods is complete, correct and up to date;
12.3.2.
The Goods will match any description
of the Goods that you provide to us;
12.3.3.
As far as you are aware, the main
characteristics of the Goods set out in the auction catalogue (as amended by
any notice displayed in the saleroom or announced by us at the auction) are
correct;
12.3.4.
The VAT status of the Goods declared by you is
correct and that items to be sold under the Auctioneers’ Margin Scheme are
eligible to be sold under the Scheme as set out in the current appropriate HMRC
VAT notices;
12.3.5.
For Goods consigned from outside the UK and to be
entered under Temporary Admissions, the following conditions are met: (i) the Goods are not returned goods to the UK, or were
Goods previously exported by you from the UK, (ii) ownership in the Goods has
not changed whilst they were outside the UK, and (iii) the Goods are eligible
for importation into the UK;
12.3.6.
To the best of your knowledge, the
Goods have been lawfully imported and lawfully and permanently (save for Goods
imported in the UK under a Temporary Admissions procedure) exported as required
by the laws of any country in which the Goods were located, required
declarations upon the export and import of the Goods have been properly made,
and any duties and taxes on the export and import of the Goods have been paid
(save for Goods imported in the UK under a Temporary Admissions procedure);
12.3.7.
Neither you, nor any agent acting for you, nor your Principal, are engaged in nor, to the best of your knowledge,
either under investigation, nor have been charged with nor convicted of: tax
evasion, money laundering, terrorist financing or other criminal activities;
12.3.8.
Neither you, nor any agent acting for you, nor your Principal, are subject to Restrictive Measures or owned,
partly owned or controlled by person(s) subject to such Restrictive Measures,
and to the best of your knowledge the Goods have not been or are not used by or
for the benefit of any person(s) subject to Restrictive Measures;
12.3.9.
Neither (i)
your consignment of the Goods, nor (ii) your sale of the Goods to the Buyer, nor
(iii) our, or where applicable the Buyer’s, receipt of the Goods does or will
violate the laws or regulations (including Restrictive Measures) of any country
in which we, you or the Buyer operate;
12.3.10.
You will pay all taxes and duties
potentially due on the sale of the Goods; and
12.3.11. The
Goods are not connected with any criminal activity including tax evasion.
12.4
Where you are acting on behalf of
another person and you are an Art Market Participant, you warrant that:
(i) you have conducted appropriate customer due
diligence on the ultimate owner(s) of the Goods in accordance with all
applicable Money Laundering Legislation; (ii) upon request, you will provide us
or any independent third party auditor (employed at our cost) with any
identification and any other relevant documentation you have obtained for
customer due diligence purposes on the ultimate owner(s) of the Goods; (iii) you
consent to us relying on this due diligence; and (iv) you will retain for a
period of not less than five years the documentation evidencing the due
diligence.
12.5
Where you are acting on behalf of
another person and you are not an Art Market Participant, you warrant that you
will provide accurate and complete information about your Principal
to us.
12.6 You must inform us promptly, and in any event before
the auction, if you find out that the warranties in this Clause 12.3 are incorrect and/or if
any of the information or documentation you have provided to us relating to the
Goods is incorrect or incomplete and/or if the Goods do not match the
description that you provided to us or the main characteristics of the Goods
set out in the auction catalogue.
12.7 Any
information that you provide in relation to the Goods may form part of the
contract between both of us and the Buyer and you acknowledge that the Buyer
may have a statutory right to reject the Goods if the information provided is
incorrect.
12.8 If
we have to refund the price of any Goods to the Buyer due to the Goods being a
Deliberate Forgery, you must promptly, and in any event within seven days,
reimburse to us any Proceeds that we have transferred to you for those Goods
following receipt of our written notice requesting you to do so.
13
Transfer
of ownership of the Goods
You warrant and undertake to us and the Buyer that you are
the true owner of the Goods (or are properly authorised by the true owner to
sell the Goods on the owner’s behalf) and you currently have and will have the
right to sell the Goods to the Buyer with good and marketable title free of any
third party rights or claims at the time when ownership of the Goods is to be
transferred.
14
Indemnity
You will indemnify and keep us fully indemnified against
any and all liability, loss, damage, costs (including reasonable legal fees and
any VAT in relation to such fees) and expenses which we may incur or suffer as
a result of any breach of Clauses 12 or 13 by you, your Principal,
or anyone acting on your behalf, including without limitation, if we are
required to refund the price of any Goods to the Buyer as a result of your
breach of these Clauses.
15
Terms
of Sale
You agree that the Goods will be sold to the Buyer in
accordance with our Terms of Sale, a copy of which will be displayed in the
saleroom and on our website www.tooveys.com.
16
Authority
to deduct commission, fees and expenses and to retain premium and interest
You authorise us to deduct our Commission at the stated
rate and all expenses incurred on your account from the Hammer Price, plus any
applicable VAT. You consent to our right to charge the Buyer and retain
beneficially the Premium plus any applicable VAT paid by the Buyer in
accordance with our Terms of Sale and any interest earned on the sale proceeds
until the date of settlement. You also authorise us to charge the Buyer any fee
owed to an independent bidding platform or service which has been used by the
Buyer when bidding for your Lot, and to pay such fee to the independent bidding
platform or service.
17.1 Provided that the Buyer has paid for the
Goods and we are satisfied with the outcome of our checks under the Money
Laundering Legislation, we will usually pay the net sum due to you within 28
working days of the last day of the auction.
17.2 If the Buyer has
not paid for the Goods, we will not submit payment to you. In this case no
settlement will be made. We will however discuss with you the rights that we
may exercise under Clause 10 of our Terms of Sale in relation to
a Buyer’s failure to pay. We will not release the Goods to the Buyer until we
have received payment in full of the Price for the Goods and have completed
necessary checks under the Money Laundering Legislation.
17.3. You must notify us in writing if your bank account details
change. We will not be responsible for any payments made to the incorrect bank
account if this is because you have not provided us with the correct bank
account details.
17.4. If we make
payments to your bank account in error, we may request reimbursement by sending
you an invoice.
17.5. We may deduct any sums that you owe to us from the Proceeds.
18.1.
If the Goods are unsold at auction,
you authorise us to negotiate a sale by private treaty not later than the close
of business up to 14 working days following the last day of the auction. In
this case you will pay to us the same charges as if such Goods had been sold at
auction and, so far as appropriate, these Terms of Consignment will apply to
any such sale.
18.2.
In addition to Clause 18.1, we may re-offer
unsold Goods at a future auction (or by private treaty thereafter as set out in
Clause 18.1 above) but with a reduction in estimate and/or Reserve. Where, in
our opinion, Goods are unsaleable, we will notify you
and you must collect such Goods from the saleroom within 30 days, we may then
either, charge you reasonable storage charges at a daily rate, referred to in
Clause 20; or donate them to charity; or dispose of the items at your expense.
18.3.
There will be no charges made in
respect of unsold lots.
18.4.
You will pay us a charge of 15% of
the mid pre-sale estimate plus VAT and a Lotting Fee of £8.00 inclusive of VAT on
any Goods that are withdrawn from the auction after being catalogued and/or
marketed by us prior to the auction in any way.
18.5.
When the seller is an overseas business seller, we
may be able cancel the VAT charge referred to in Clauses 18.3 and 18.4 above,
provided that you provide us with details of your overseas fixed establishment.
19.
Withdrawal
of the Goods by us
19.1.
We may (acting reasonably) at our
discretion at any time withdraw your Goods from our auction:
19.1.1. for
legal, reputational or operational reasons (including, but not limited to, if
you fail to provide evidence to verify your identity or your title to the Goods
to our satisfaction);
19.1.2. if
we reasonably believe that you may be, or are about to be, in breach of these
Terms of Consignment; or
19.1.3. if
we reasonably believe the Goods to be a Deliberate Forgery.
20.1. We
reserve the right to charge you a minimum warehousing charge of £5 per lot plus any applicable VAT per day.
20.3.
We will notify you to ask you to
remove any of your unsold or withdrawn Goods. Unsold and withdrawn Goods will
be subject to the charges set out in Clause 20.1 above if you do not remove them
within seven days of the date of our notification requesting you to do so.
20.4.
If you do not remove your unsold or
withdrawn Goods within 30 days of the date of our notification
we may either: (a) sell such Goods and deduct any charges applied in accordance
with Clause 20.1 from any net proceeds of sale; or
(b) at your expense dispose of such Goods, or donate them to charity.
20.5. You may not claim or collect the Goods until any
applicable storage charges applicable under Clause 20.1 and accrued
up until the day of collection have been paid in full by you (at law, the right
for a professional to hold on to goods until its services have been paid for is
called a “lien”).
21.
Our
disclaimers and our liability to you
21.1.
We will not be liable to you for any
loss of opportunity or disappointment suffered as a result of participating in
our auction.
21.2.
In addition, neither we nor the
Buyer shall be responsible to you and you shall not be responsible to the Buyer
or us for any other loss or damage that any of us suffer that is not a
foreseeable result of any of us not complying with the Conditions of Business.
Loss or damage is foreseeable if it is obvious that it will happen or if at the
time of the sale of the Lot, we, you and the Seller knew it might happen.
21.3.
Subject to Clause 21.4, if we are
found to be liable to you for any reason (including, amongst others, if we are
found to be negligent, in breach of contract or to have made a
misrepresentation), our liability will be limited to the Proceeds due for the Goods
if sold or the Reserve if unsold.
21.4.
Notwithstanding the above, nothing
in these Terms of Consignment limits the liability of us, our employees or
agents for:
21.4.1. death
or personal injury resulting from negligence (as defined in the Unfair Contract
Terms Act 1977);
21.4.2. fraudulent
misrepresentation; or
21.4.3. any
liability which cannot be excluded by law.
22.
Notices
22.2.
Any notice referred in Clause 22.1
may be given:
22.2.1. by
delivering it by hand;
22.2.2. by
first class pre-paid post or Recorded Delivery; or
22.2.3. by
email, provided that a copy is also sent by first class pre-paid post or
Recorded Delivery. A notice given by email will be deemed to be signed for the
purposes of this Clause 22.1 if the name of the sender appears
in a signature position after the body of the email and has not been added
automatically by the sender’s email server.
22.3.
Notices must be sent:
22.3.1. by
hand, by first class pre-paid post or Recorded Delivery:
a. to
us, at our address set out in these Terms of Consignment or at our registered
office address appearing on our Website.
b. to
you, at the last postal address that you have given to us as your contact
address in writing.
22.3.2. by
email:
a. to
us, by sending the notice to the following email address: auctions@tooveys.com
b. to
you, by sending the notice to any email address that you have given to us as
your contact email address in writing.
22.4.
Notices will be deemed to have been
received:
22.4.1. if
delivered by hand, on the day of delivery;
22.4.2. if
sent by first class pre-paid post or Recorded Delivery two business days after
posting, exclusive of the day of posting; or
22.4.3. if
sent by email, at the time of transmission unless sent after 17.00 in the place
of receipt in which case they will be deemed to have been received on the next
business day in the place of receipt (provided that a copy has also been sent
by pre-paid post or Recorded Delivery as set out in Clause 22.3.1).
22.5.
Any notice or communication given
under these Terms of Consignment will not be validly given if sent by fax, any
form of messaging via social media or text message (including WhatsApp).
23.
Data
Protection
We will hold and
process any personal data in relation to you in accordance with our current
privacy policy, a copy of which is available on www.tooveys.com.
24.
General
24.1.
Each of the Clauses of these Terms
of Consignment operates separately. If any court or relevant authority decides
that any of them are unlawful, the remaining Clauses will remain in full force
and effect.
24.2.
We may change these Terms of
Consignment from time to time, without notice to you. Please read these Terms
of Consignment carefully, as they may be different from the last time you read
them.
24.3.
Except as otherwise stated in these
Terms of Consignment, each of our rights and remedies: (a) are in addition to
and not exclusive of any other rights or remedies under these Terms of
Consignment or general law; and (b) may be waived only in writing and
specifically. Delay in the exercise or non-exercise of any right under these
Terms of Consignment is not a waiver of that or any other right. Partial
exercise of any right under these Terms of Consignment will not preclude any
further or other exercise of that right or any other right under these Terms of
Consignment. Waiver of a breach of any term of these Terms of Consignment will
not operate as a waiver of breach of any other term or any subsequent breach of
that term.
24.4.
These Terms of Consignment are
between you and us. No person other than you, the Buyer or us will have any
rights to enforce any of these Terms of Consignment.
24.5.
These Terms of Consignment and any
dispute or claim arising out of or in connection with them (including any
non-contractual claims or disputes) shall be governed by and construed in
accordance with the laws of England and the parties irrevocably submit to the
exclusive jurisdiction of the English courts.
(3) TERMS OF SALE
Both the sale of goods at our
auctions and your relationship with us are governed by the Terms of Consignment
(primarily applicable to sellers) the Terms of Sale (primarily applicable to
bidders and buyers) and any notices displayed in the saleroom or announced by
us at the auction (collectively, the “Conditions of Business”). The Terms of
Consignment and Terms of Sale are available at our saleroom on request.
Please read these Terms of Sale
carefully. Please note that if you register to bid and/or bid at auction this
signifies that you agree to and will comply with these Terms of Sale.
Please note that these Terms of
Sale relate to auctions held at our premises only. We have separate terms for
online only auctions.
1.
Definitions
and interpretation
1.1.
To make these Terms of Sale easier
to read, we have given the following words a specific meaning:
|
“Auctioneer” |
Means Rupert Toovey
& Co Ltd, trading as Toovey’s, a company registered in England and Wales
with registration number 2994075 and whose registered office is located at Toovey’s,
Spring Gardens, Washington, West Sussex, RH20 3BS or its authorised
auctioneer, as appropriate; |
|
“Art Market
Participant” |
means an art market
business registered with HMRC under the Money Laundering, Terrorist Financing
and Transfer of Funds (Information on the Payer) Regulations 2017 (as
amended); |
|
“Bidder” |
means a person who
places an offer (called a “bid”) for Goods at our auction; |
|
“Buyer” |
means the person
who makes the highest bid for a Lot accepted by the Auctioneer; |
|
“Deliberate Forgery” |
means: (a) an
imitation made with the intention of deceiving as to authorship, origin,
date, age, period, culture or source; and (b) which is described in the
catalogue as being the work of a particular creator without qualification;
and (c) which at the date of the auction had a value materially less than it
would have had if it had been as described; |
|
“Hammer Price” |
means the level of
the highest bid for a Lot accepted by the Auctioneer by the fall of the
hammer; |
|
“Independent Bidding Platform” |
means an online
bidding platform or service that is independent from us and has an
arrangement with us to permit a Bidder to review Lots and to bid in our
auctions using their platform or service; |
|
“Lot(s)” |
means the goods
that we offer for sale at our auctions; |
|
Money Laundering Legislation” |
means the Money
Laundering, Terrorist Financing and Transfer of Funds (Information on the
Payer) Regulations 2017 (as amended) and related legislation, together with
any applicable terrorist financing and legislation on Restrictive Measures; |
|
“Principal” |
means a person or
entity you are acting on behalf of for the purposes of the purchase of the
Lot(s); |
|
“Premium” |
means the fee that
we will charge you on your purchase of a Lot to be calculated as set out in
Clause 4.1.b; |
|
“Recorded
Delivery” |
means a method of
delivery pursuant to which the sender receives a confirmation that a letter
has been posted and a signature is obtained from the recipient as a record
that it has been delivered; |
|
“Reserve” |
means the minimum
hammer price at which a Lot may be sold; |
|
“Restrictive
Measures” |
means economic or
financial sanctions, export controls, embargoes or any other restriction on
trade under the laws of the European Union, the United Kingdom or the United
States, or in the jurisdiction in which you, your Principal,
or any agent acting for you does business; |
|
“Sale Proceeds” |
means the net
amount due to the Seller; |
|
“Seller”
|
means the person who consigns Lots for sale at our auctions; |
|
“Terms of Consignment”
|
means
the terms on which we agree with Sellers to offer Lots for sale in our
auctions as agent on their behalf; |
|
“Terms of Sale” |
means these terms
of sale, as amended or updated from time to time; |
|
“Total Amount Due” |
means the Hammer
Price for a Lot, the Premium, any applicable artist’s resale right royalty, any
service charge or fee levied by the Independent Bidding Platform through
which the successful bid was placed, any VAT due and any additional charges
payable by a defaulting buyer under these Terms of Sale; |
|
“Trader” |
means a Seller who
is acting for purposes relating to that Seller’s trade, business, craft or
profession, whether acting personally or through another person acting in the
trader’s name or on the trader’s behalf; |
|
“VAT” |
means Value Added
Tax or any equivalent sales tax; and |
|
“Website” |
means our website
available at www.tooveys.com. |
1.2.
In these Terms of Sale, the words “you”,
“yours”, etc. refer to you as the Buyer. The words “we”, “us”, “our” etc. refer
to the Auctioneer. Any reference to a ‘Clause’ is to a clause of these Terms of
Sale unless stated otherwise.
2.
Information
that we are required to give to Consumers
2.1.
A description of the main
characteristics of each Lot as contained in the auction catalogue.
2.2.
Our name, address and contact
details as set out herein, in our auction catalogues and/or on our Website.
2.3.
The price of the Goods and
arrangements for payment as described in Clauses 4, 5, 8 and 9.
2.4.
The arrangements for collection of
the Goods as set out in Clauses 9 and 10.
2.5.
Your right to return a Lot and
receive a refund if the Lot is a Deliberate Forgery as set out in Clause 14.
2.6.
We and Trader Sellers have a legal
duty to supply any Lots to you in accordance with these Terms of Sale.
2.7.
If you have any complaints, please
send them to us directly at the address set out on our Website.
2.8.
We also refer you to your warranties
as a Bidder and Buyer as set out in Clause 6.
3.
Bidding
procedures and the Buyer
3.1.
You must register your details with
us before bidding and provide us with any requested proof of identity and
billing information, in a form acceptable to us (more details are set out at Paragraph
[13] of the Information for Buyers in the auction catalogue). We reserve the
right, where we deem we are so required for regulatory
purposes, to reveal your identity and contact details (and those of your Principal) to the Seller. You must also satisfy any security
arrangements we have in place before entering the auction room to view or bid.
3.2.
We strongly recommend that you
attend the auction in person if possible. You are responsible for your decision
to bid for a particular Lot. If you bid on a Lot, including by telephone and
online bidding, or by placing a commission bid, we assume that you have
carefully inspected the Lot and satisfied yourself regarding its condition.
3.3.
If you instruct us in writing, we
may execute commission bids on your behalf. Neither we nor our employees or
agents will be responsible for any failure to execute your commission bid.
Where two or more commission bids are recorded at the same level, we have the
right to prefer the first bid made (where this can be reasonably ascertained).
3.4.
The Bidder placing the highest bid
for a Lot accepted by the Auctioneer will be the Buyer at the Hammer Price. However, the Auctioneer shall retain discretion on the
running of the auction and in particular, retains the right not to accept a bid
and to prefer a bid over any other bids received at the same time. Any
dispute about a bid will be settled at our sole discretion. We may reoffer the Lot during the auction or may settle
the dispute in another way. We will act reasonably when deciding how to settle
the dispute.
3.5.
Bidders will be deemed to act as
principals (in other words, acting for their own account and not on behalf of
someone else), even if the Bidder is acting as an agent for a third party.
3.6.
We may bid on Lots on behalf of the
Seller up to one bid below the Reserve.
3.7.
We may refuse to accept any bid at
our sole discretion
3.8.
Bidding increments will be at our
sole discretion (but will be in line with standard auction practice).
3.9.
In the event you participate in the
auction using the services of an Independent Bidding Platform, you will incur
an additional fee or additional commission payable to that platform. This will be collected by us as part of the
Total Amount Due in the event you are the Buyer of the Lot on which you bid.
a.
the Hammer Price;
b.
a Premium of 25% plus VAT (30% inclusive
of VAT) of the Hammer Price;
c.
any artist’s resale right royalty
identified as payable on the sale of the Lot;
d.
any additional bidding fee payable
by a Buyer bidding via an Independent Bidding Platform; and
e.
any VAT due.
5.1.
You shall be liable for the payment
of any VAT applicable on the Hammer Price and Premium due for a Lot and on any
fee payable pursuant to Clause 4.1.d above. Please see the symbols used in the
auction catalogue for that Lot and the “Information for Buyers” on our website www.tooveys.com
for further information.
5.2.
We will charge VAT at the current
rate at the date of the auction.
6.1.
You warrant, and where you are
acting on behalf of someone else, you will procure that your Principal warrants, that:
6.1.1. the
funds to be used for the purchase of the Lot(s) are not connected with nor are
derived from any criminal activity, including without limitation tax evasion,
money laundering or terrorist financing;
6.1.2. neither
you, nor any agent acting for you, nor your Principal,
are to the best of your knowledge either under investigation, nor have you been
charged with or convicted of without limitation tax evasion, money laundering,
terrorist financing or other criminal activities; and
6.1.3.
neither you, nor any agent acting
for you, nor your Principal, are subject to
Restrictive Measures or owned, partly owned or controlled by person(s) subject
to such Restrictive Measures.
6.2.
Where you are bidding on behalf of
another person and you are an Art Market Participant, you warrant that: (i) you have conducted appropriate customer due diligence on
the ultimate Buyer of the Goods in accordance with all applicable Money
Laundering Legislation; (ii) upon request, you will provide us or any
independent third party auditor (employed at our cost) with any identification
and any other relevant documentation you have obtained for customer due
diligence purposes on the ultimate Buyer of the Goods; (iii) you consent to us
relying on this due diligence; and (iv) you will retain for a period of not
less than five years the documentation evidencing the due diligence.
6.3.
Where you are bidding on behalf of
another person and you are not a regulated Art Market Participant, you warrant
that you will provide accurate and complete information about your Principal to us.
7.
The
contract between you and the Seller
7.1.
The contract for the
purchase of the Lot between you and the Seller will be formed when the hammer
falls accepting the highest bid for the Lot at the auction.
7.2.
You may directly enforce any terms
in the Terms of Consignment against a Seller to the extent that you suffer
damages and/or loss as a result of the Seller’s breach of the Terms of
Consignment.
7.3.
If you breach these Terms of Sale,
you may be responsible for damages and/or losses suffered by a Seller or us. If
we are contacted by a Seller who wishes to bring a claim against you, we may in
our discretion provide the Seller with information or assistance in relation to
that claim.
7.4.
We normally act as an agent only and
will not have any responsibility for default by you or the Seller (unless we
are the Seller of the Lot).
7.5.
In addition to any other rights we may have to cancel a contract for sale under these
Terms of Sale, we may delay completion of a sale, delay release of a Lot or
cancel the sale of a Lot in the event:
7.5.1 you are in
breach of your warranties in Clause 6; or
7.5.2 we have not completed our enquiries pursuant to the Money Laundering Legislation
to our satisfaction; or
7.5.3 we have reason to believe that the transaction might
be unlawful for any reason, or that the sale might put us under any civil or
criminal liability.
8.1.
Immediately following your
successful bid on a Lot you will:
8.1.1.
give to us, if not already provided
to our satisfaction, proof of identity in a form acceptable to us (and any
other information that we require in order to comply with our anti-money
laundering obligations – please refer to Clause 13 of the Information for
Buyers).
8.1.2.
pay to us the Total Amount Due in
any way that we agree to accept payment (for cash, there is an upper limit of 10,000
euros equivalent).
8.2.
If you owe us any money, we may use
any payment made by you to repay the money you owe us.
9.
Title
and collection of purchases
9.1.
While you are bound by the contract
for the purchase of the Lot from the fall of the hammer on your successful bid,
the transaction is not completed and ownership of the Lot will not pass to you
until:
9.1.1.
you have paid us in full the Total
Amount Due in cleared funds for that Lot;
9.1.2.
you have provided us with the
information set out in Clause 8.1.1; and
9.1.3.
we have completed our enquiries
pursuant to the Money Laundering Legislation to our satisfaction.
9.2.
You may not claim or collect a Lot
until (i) you have paid for it, (ii) ownership has
passed to you and (iii) any applicable storage charge applicable under Clause
9.4 and accrued up until the day of collection have been paid in full by you
(at law, the right for a professional to hold on to goods until its services
have been paid for is called a “lien”).
9.3.
Unless notified otherwise, and
subject to the passing of ownership in the Lot to you under Clause 9.1, you
will (at your own expense) collect any Lots that you have purchased and paid
for either:
9.3.1.
not later than seven working days following the day
of the auction; or
9.3.2.
not later than seven working days following the
date that we have received payment of the Total Amount Due in cleared funds, if
later.
9.4.
Subject to Clause 9.1, if you do not collect a Lot you
have agreed to purchase within any of the time periods set out at Clause 9.3
above, we shall start charging a minimum warehousing charge of £5 per lot per
day plus any applicable VAT, starting from the latest of the time periods set
out at Clause 9.3 above to expire. You will also be responsible for any
reasonable removal and insurance charges in relation to that Lot unless the delay was caused
by us.
9.5.
Risk of loss or damage to the Lot
will pass to you when you (or your agents) take physical possession of the Lot.
9.6.
Subject to Clause 9.1, if you do not collect the Lot that
you have paid for within ninety days after the
auction, we may sell the Lot. We will pay the proceeds of any such sale to you,
but (unless the delay was caused by us) will
deduct any storage charges or other sums that we have incurred in the
storage and sale of the Lot. We reserve the right to charge you a selling
commission at our standard rates on any such resale of the Lot.
10.
Remedies
for non-payment or failure to collect purchases
10.1.1. take
action against you for damages for breach of contract;
10.1.2. reverse
the sale of the Lot to you and/or any other Lots sold by us to you;
10.1.3. resell
the Lot by auction or private treaty (in which case you will have to pay any
difference between the price you should have paid for the Lot and the price we
sell it for as well as the charges outlined in Clause 9. Please note that if we
sell the Lot for a higher amount than your winning bid, the extra money will
belong to the Seller;
10.1.4. remove,
store and insure the Lot at your expense;
10.1.5. if
you do not pay us within ten working days
of your successful bid, we reserve the right to charge interest at a rate not
exceeding the Bank of England base rate plus an additional 1.5% on the total
amount due;
10.1.6. keep
that Lot or any other Lot sold to you until you pay the Total Amount Due;
10.1.7. reject
or ignore bids from you or your agent at future auctions or impose conditions
before we accept bids from you; and/or
10.1.8. if
we sell any Lots for you, use the money made on these Lots to repay any amount
you owe us.
10.2.
We will act reasonably when
exercising our rights under Clause 10.1. We will contact you before
exercising these rights and try to work with you to correct any non-compliance
by you with these Terms of Sale.
11.
Health
and safety
Although we take reasonable precautions regarding health
and safety, you are on our premises at your own risk. Please note the lay-out
of the premises and security arrangements. Neither we nor our employees or
agents are responsible for the safety of you or your property when you visit
our premises, unless you suffer any injury to your person or damage to your
property as a result of our, our employees’ or our agents’ negligence.
12.
Seller’s Warranties
12.1.
The Seller warrants to us and to you
that:
12.1.1. the
Seller is the true owner of the Lot for sale or is authorised by the true owner
to offer and sell the Lot at auction;
12.1.2. the
Seller is able to transfer good and marketable title to the Lot to you free
from any third party rights or claims; and
12.1.3. as
far as the Seller is aware, the main characteristics of the Lot set out in the
auction catalogue (as amended by any notice displayed in the saleroom or
announced by the Auctioneer at the auction), and any documentation provided to
you by the Seller in relation to the Lot, are correct.
12.2.
If, after you have placed a
successful bid and paid for a Lot, any of the warranties above are found not to
be true, please notify us in writing. Neither we nor the Seller will be liable
to pay you any sums over and above the Total Amount Due and we will not be
responsible for any inaccuracies in the information provided by the Seller
except as set out below.
12.3.
Please note that many of the Lots
that you may bid on at our auction are second-hand. If a Lot is not second-hand
and you purchase the Lot as a Consumer from a Seller that is a Trader, a number
of additional terms may be implied by law in addition to the Seller’s
warranties set out at Clause 12.1 (in particular under the Consumer Rights Act
2015). These Terms of Sale do not seek to exclude your rights under law as they
relate to the sale of these Lots.
12.4.
Save as expressly set out above, all
other warranties, conditions or other terms which might have effect between the
Seller and you, or us and you, or be implied or incorporated by statue, common
law or otherwise are excluded.
13.
Descriptions, condition and safety
13.1.
Our descriptions of the Lot will be
based on: (a) information provided to us by the Seller of the Lot (for which we
are not liable); and (b) our opinion (although it is likely that we will not be
able to carry out a detailed inspection of each Lot). The actual colour of the
Lot may vary from the images in the auction catalogue.
13.2.
We will give you a number of
opportunities to view and inspect the Lots before the auction. You (and any
independent consultants acting on your behalf) must satisfy yourself about the
accuracy of any description of a Lot. We shall not be responsible for any
failure by you or your consultants to properly inspect a Lot.
13.3.
Representations or statements by us
as to authorship, genuineness, origin, date, age, provenance, condition or
estimated selling price involve matters of opinion. We undertake that any such
opinion will be honestly and reasonably held and accept liability for opinions
given negligently or fraudulently.
13.5.
The sale of Lots containing marine
and elephant ivory is banned, subject to some exceptions. Where we offer Lots
containing elephant ivory from time to time, we rely on the documentation
obtained by the Seller of the Lot confirming that the Lot satisfies the
relevant exemptions.
We cannot guarantee that any certificate or other documentation provided by us
(on the Seller’s behalf) to you in connection with the sale of the Lot is valid
or accurate.
13.6.
All Lots with electrical components
are sold as “antiques” for their historical and decorative attributes for
collection and display only, and are not intended for use. If you buy Lots with
electrical components and intend to use them, you must first ask a qualified
electrician to check them for compliance with safety regulations.
13.7.
All Lots of furniture are sold as a
collector’s item for display purposes and are not supplied for use. Such Lots
may not comply with applicable furniture and safety regulations. Therefore, if
you do intend to use such Lots for private use or otherwise, you must first
ensure that they are refurbished and rendered compliant with any applicable furniture
and safety regulations.
13.8.
All measurements are approximate.
Unless stated, the visible area of a picture or print will be measured,
excluding any mount or frame.
14.1.
You may return any Lot which you
consider with some cause to be a Deliberate Forgery to us within twelve months of the auction,
provided that you return the Lot to us in the same condition as when it was
released to you, accompanied by a written statement identifying the Lot from
the relevant catalogue description and a written statement of defects.
14.2.
If we are satisfied, acting
reasonably, that the Lot is a Deliberate Forgery and it has been returned to us
within the time specified in Clause 14.1, we will refund the money paid by you
for the Lot (including any Premium and applicable VAT) provided that you will
have no right to a refund under this Clause 14.2 if:
14.2.1. the
catalogue description reflected the accepted view of experts as at the date of
the auction; or
14.2.2. you
personally are not able to transfer good and marketable title in the Lot to us.
14.3.
If you have sold the Lot to another
person, we will only be liable to refund the price that you paid for the Lot.
We will not be responsible for repaying any additional money you may have made
from selling the Lot. The rights under this Clause 14 are given to you as
Buyer in our auction; they are not given to, and may not be transferred or
assigned to, any third party.
14.4.
Your right to return a Lot that is a
Deliberate Forgery does not affect your legal rights and is in addition to any
other right or remedy provided by law or by these Terms of Sale.
15.
Our
liability to you
15.1.
We will not be liable for any loss
of opportunity or disappointment suffered as a result of participating in our
auction.
15.2.
In addition to the above, neither we
nor the Seller shall be responsible to you and you shall not be responsible to
the Seller or us for any other loss or damage that any of us suffer that is not
a foreseeable result of any of us not complying with the Conditions of
Business. Loss or damage is foreseeable if it is obvious that it will happen or
if at the time of the sale of the Lot, we, you and the Seller knew it might
happen.
15.3.
You should note that Lots are sold
as antiques for their decorative attributes rather than for use, and are often
of considerable age and uncertain manufacture; neither we nor the Seller
accepts any liability for loss or damage to the Lots, or any other loss or
damage, that is caused by or results from any inherent vice or defect affecting
the Lots.
15.4.
Subject to Clause 15, if we are
found to be liable to you for any reason (including, amongst others, if we are
found to be negligent, in breach of contract or to have made a
misrepresentation), our liability will be limited to the total purchase price
paid by you to us for any Lot.
15.5.
Notwithstanding the above, nothing
in these Terms of Sale shall limit our liability (or that of our employees or
agents) for:
15.5.1. death
or personal injury resulting from negligence (as defined in the Unfair Contract
Terms Act 1977); or
15.5.2. fraudulent
misrepresentation; or
15.5.3. any
liability which cannot be excluded by law.
16.
Notices
16.2.
Any notice referred in Clause 16.1
may be given:
16.2.1. by
delivering it by hand; or
16.2.2. by
first class pre-paid post or Recorded Delivery; or
16.2.3. by
email, provided that a copy is also sent by first class pre-paid post or
Recorded Delivery. A notice given by email will be deemed to be signed for the
purposes of this Clause 16.1 if the name of the sender appears
in a signature position after the body of the email and has not been added
automatically by the sender’s email server.
16.3.
Notices must be sent:
16.3.1. by
hand, by first class pre-paid post or Recorded Delivery:
a. to
us, at our address set out in these Terms of Sale or at our registered office
address appearing on our Website; and
b. to
you, at the last postal address that you have given to us as your contact
address in writing; or
16.3.2. by
email:
a. to
us, by sending the notice to the following email address: auctions@tooveys.com
b. to
you, by sending the notice to any email address that you have given to us as
your contact email address in writing.
16.4.
Notices will be deemed to have been
received:
16.4.1. if
delivered by hand, on the day of delivery; or
16.4.2. if
sent by first class pre-paid post or Recorded Delivery, two business days after
posting, exclusive of the day of posting; or
16.4.3. if
sent by email, at the time of transmission unless sent after 17.00 in the place
of receipt in which case they will be deemed to have been received on the next
business day in the place of receipt (provided that a copy has also been sent
by pre-paid post or Recorded Delivery as set out in Clause 16.3.1).
16.5.
Any notice or communication given
under these Terms of Sale will not be validly given if sent by fax, any form of
messaging via social media or text message.
17.
Data
Protection
We will hold and
process any personal data in relation to you in accordance with our current
privacy policy, a copy of which is available on www.tooveys.com/privacy-policy/.
18.
General
18.1.
We may, acting reasonably, refuse
admission to our premises or attendance at our auctions by any person.
18.2.
We act as an agent for our Sellers.
The rights we have to claim against you for breach of these Terms of Sale may
be used by either us, our employees or agents, or the Seller, its employees or
agents, as appropriate. Other than as set out in this Clause 18.2, these Terms of Sale are between
you and us and no other person will have any rights to enforce any of these
Terms of Sale.
18.3.
We may use special terms in the
catalogue descriptions of particular Lots. You must read these terms carefully and
seek clarification if you remain unclear on a particular word or phrase.
18.4.
Each of the Clauses of these Terms
of Sale operates separately. If any court or relevant authority decides that
any of them are unlawful, the remaining Clauses will remain in full force and
effect.
18.5.
We may change these Terms of Sale
from time to time, without notice to you. Please read these Terms of Sale
carefully, as they may be different from the last time you read them.
18.6.
Except as otherwise stated in these
Terms of Sale, each of our rights and remedies are: (a) are in addition to and
not exclusive of any other rights or remedies under these Terms of Sale or
general law; and (b) may be waived only in writing and specifically. Delay in
exercising or non-exercise of any right under these Terms of Sale is not a
waiver of that or any other right. Partial exercise of any right under these
Terms of Sale will not preclude any further or other exercise of that right or
any other right under these Terms of Sale. Waiver of a breach of any term of
these Terms of Sale will not operate as a waiver of breach of any other term or
any subsequent breach of that term.
18.7.
These Terms of Sale and any dispute
or claim arising out of or in connection with them (including any
non-contractual claims or disputes) shall be governed by and construed in
accordance with the laws of England and the parties irrevocably submit to the exclusive
jurisdiction of the English courts.