Transaction Agreement
Transaction Rules for Jewellery
2012-11-14
Transaction Rules for Jewellery (Hong Kong)
The following provisions are entered into by and between Ravenel Auction Hong Kong Limited, , as the auctioneer(hereinafter referred to as “the Company”), and the Seller (hereinafter referred to as the "Seller"). This Agreement is also entered into by and between the Company as the agent of the Seller and the Buyer (hereinafter referred to as the "Buyer"). The Prospective Buyer, the Buyer and the Seller must carefully review and completely agree all provisions hereunder and any revisions from time to time. The Buyer should pay special attention to Article 2, Section 5 which provides limitations as to the legal responsibilities of the Company.
Article 1.Definition
Some of the phrases commonly seen herein are defined as follows:
1. "The Buyer" shall mean highest bidder accepted by the Company.
2. “The Prospective Buyer” shall mean any potential bidder willing to attend the auction salehosted by the Company.
3. “The Seller” shall mean the mandator who provides the Lot and agrees to appoint the Company as its exclusive agent to sell the Lot at the Auction and participate, and cooperate, in exhibitions prior to the Auction if so required by the Company.
4. "The Lot" shall mean the item delivered to the Company to be sold in an auction, especially the single or multiple pieces of items numbered in the catalogue.
5. "Hammer price" shall mean the highest bid with respect to one particular auction item accepted by the auctioning party.
6. "The Buyer’s Premium paid by the Buyer" shall mean the fee based on a certain percentage of the Hammer price paid by the Buyer; the percentage shall be as prescribed in Article 2, Section 4a.
7. "The Reserve Price" shall mean the lowest price agreed by the Company and Seller. The Lot cannot be sold at a price lower than such price.
8. "Counterfeit" shall mean the Lot constitutes imitation and the original concept of the imitation and its overall execution result in fraud to cause deception in connection with the author, history, year, age, culture or origin of the Lot, for which the accurate description is not reflected in the catalogue and the value of the Lot on the auction day is far less than the value it should have according to the description in the catalogue. Therefore, no auction item will become a counterfeit as a result of any damage and/or any repairing in any manner (including repaints).
9. "Insured amount" shall mean the value of the insurance purchased for the Lot which the Company considers necessary under its absolute power from time to time (regardless whether such insurance is purchased by the Company).
Article 2.The Buyer
1. The Company as the Agent
The Company, as the auctioning party, shall act as the agent of the Seller. Except otherwise provided, items successfully sold in the auction held by the Company shall be bound by the agreement made by and between the Seller, through the agency of the Company, and the Buyer.
2. Prior to the Auction
a. Authentication
We strongly recommend that the prospective buyers conduct their own authentication for the items they are interested in bidding prior to the auction. We provide no guarantees to the buyer including but without limitations whether the Lot is a counterfeit or the authentication of the Lot’s certificates (with the exception of the guarantee with regard to counterfeits as defined in Article 1 of the Transaction Agreement).
b. Important Notice
Attention, the Prospective Buyers: As far as possible, the descriptions of auction items will mention obvious defects of the items; however, they do not necessarily include all flaws, defects, or incomplete aspects. The Company does not guarantee that the Lots on auction are in good working condition and the descriptions in the catalogue must not be construed as implying such. The description of the auction items also do not imply that the items have not gone through readjustment or repair or allude anything about the current state or storage conditions of the items. Any omission in the catalogue description regarding the current condition or the appraisal of defects in the items by no means represent that those items are in good condition, function normally, or that there will be any free repair or replacement of parts. We strongly recommend the Prospective Buyers to personally view the items for which they plan to bid before the auction itself. If a Prospective Buyer is unable to view an item for whatever reason, then in our role as a service provider, we would be more than happy to offer our opinion of an item's special characteristics and current condition. However, the Company is not a professional restorer of the Lots; therefore, any description in the catalogue or any statement provided by the Company is purely the Company's subjective opinion and not a statement of fact, not for representations or warranties.
The Prospective Buyer completely understands and acknowledges that all of the items on auction are being sold in "as is" condition.The Company does not provide any representation or guarantee as to the conditions of any of the items. Unless otherwise stated in laws of Hong Kong, the Company does not provide any warranty with the items.
c. Symbol Key
The following key explains the symbol you may see inside this catalogue.
Premium Lot
In order to bid on "Premium Lots" the Buyer must complete the required pre-registration application and deliver to The Company such necessary financial references, guarantees, deposits and / or such other security as The Company's may in its absolute discretion require for your bid. The Companydecision whether to accept any pre-registration application shall be final. We recommend you complete and return the Lot pre-registration form in this catalogue in the manner required therein or contact the Company at least 5 working days prior to the relevant sale in order to process the pre-registration. Please bear in mind that we are unable to obtain financial references over weekends or public holidays. The Company will provide a special paddle number for the register of "Premium Lot".
ｏGuaranteed Property
The Seller of the Lots with this symbol next to the Lot number has been guaranteed a minimum price from one auction or a series of auctions. This guarantee may be provided by the Company, by a third party or jointly by the Company and a third party. A guarantee may be in the form of an irrevocable bid provided by a third party. Third parties providing or participating in a guarantee may benefit financially if a guaranteed Lot is sold successfully and may incur a loss if the sale is not successful. If third parties providing or participating in a guarantee is the successful bidder for the guaranteed Lot, they should be required to pay the full Buyer’s Premium.
ƐEndangered Species
Property made of or incorporating endangered and other protected species of wildlife are marked in the catalogue with a symbol (Ɛ) next to the title of the said lot. Such materials include coral, ivory, tortoiseshell, crocodile skin, rhinoceros horn, whalebone, etc. The Buyers should be aware that some countries prohibit altogether the importation of property containing such materials, and that other countries may require a licence or certificate (e.g. a CITES permit) in the countries of exportation as well as importation. For example, the United State prohibits the importation of elephant ivory that is less than 100 years old. The Company suggests that the Buyers check with their own government regarding wildlife import requirements prior to placing a bid. Please note that it is the Buyer’s responsibility to obtain any licences and/or certificates as well as other required documentation applying to the importation or exportation of the property containing endangered and other protected wildlife materials. The Buyers completely acknowledge and understand the inability to import or export such property is not a basis for cancellation or rescission of the sale.
Burmese Stones
Lots which contain rubies or jadeite originating In Burma (Myanmar) may be prohibited to be imported into the United States. As a convenience to our bidders, we have marked these lots with ( ). The Buyers completely acknowledge and understand that any inability to import any such Lots into the U.S. or any other country shall not constitute grounds for non-payment or cancellation of the sale.
With respect to the Lots that contain any other types of gemstones originating in Burma (e.g., sapphires), such Lots may have the possibility to be imported into the U.S., provided that gemstones have been mounted or incorporated into jewellery outside of Burma and provided that the setting is not of a temporary nature (e.g., a string).
Importation of watches into the USA
The Prospective Buyers should be aware that the importation of luxury watches such as Rolex into the United States is highly restricted. These watches (not limited to Rolex) may be prohibited to be shipped into the USA and can only be imported personally. Generally, a buyer may import and wear only one watch into the USA. In this catalogue these watches have been marked with ( ).
It is the Buyer's sole responsibility to determine whether there are any Import restrictions and to comply with such restrictions. The Buyers completely acknowledge and understand that the failure by the Company to mark a lot with ( ) shall not constitute grounds to rescind or cancel a sale.
d. Catalogue Explanations
Any statement of the author, history, date, year, size, material, ownership, authenticity, origin, condition of preservation or estimated selling price of any of the Lots and certificates thereof shown in the catalogue or the authentication opinion made by the Company, or any other verbal or written statements made separately shall be solely statements of opinions and shall not be deemed the basis for the statements of actual fact. The photographs shown in the catalogue shall serve as reference only and shall not be deemed as the basis for determining the color or tone of any Lots or disclosure of the defects of such item. The estimates of the auction price shall not be deemed the price at which such item will be successfully sold or the statement of the value of the item for other purposes.
Many auction items fail to maintain their perfect condition because of time and other environmental factors. Some of the explanations in the catalogue or the authentication opinions will state defects and/or the repair background of the Lots. Such information is meant for reference only. Missing information in the statements does not mean the Lot has no defects or has not been repaired. Any statement of one particular defect does not mean there is no any other defect.
All the lots in this catalogue are offered subject to a reserve, which is the confidential minimum price established between the Company and the seller and below which the lot will not be sold. The Reserve Price will not exceed the low estimate for the lot. If any lots are offered without a reserve, these lots will be identified with the red title, and a Special Note will be included to this effect.
The description of the condition of clocks and watches in this catalogue, including references to defects and repairs, is provided as a service to prospective buyers, but such description is not necessarily complete. While The Company will furnish a condition report on any lot to a prospective purchaser upon request, any such report may also be incomplete and may not specify all mechanical replacements or defects. Accordingly, all clocks and watches should be viewed personally by prospective buyers to evaluate the condition of the property offered for sale. All lots are sold "as is", and absence of any reference to the condition of a clock or watch does not imply that the lot is in good condition and without defects, repairs or restorations. Virtually all clocks and watches have been repaired in the course of their normal useful lifetime and may now incorporate parts not original to them. Furthermore, The Company makes no representation or warranty that any clock or watch is in working order.
It should be noted that most wristwatches with water-resistant cases have been opened to identify type and quality of movement. It cannot be assumed that the watches are still waterproof and the Buyers are advised to have the watches checked by a competent watch-maker before use.
Please note that gold of less than 18ct. does not quality in all countries as 'gold' and may be refused import. The Company cannot accept liability if import is refused.
Please note that all Rolex watches in the The Company sale catalogue are sold as viewed and that The Company cannot guarantee the authenticity of any individual component part of these Rolex watches. The bracelets described as "associated" are not part of the original piece and may not be authentic.
e. Responsibility of the Buyer
The Buyer is responsible for clarifying and satisfying himself about the condition of the items and any related matters stated in the catalogue descriptions and making his/her own judgment or estimation independently regarding the Lots.
3. In the Auction
a. Refusal of Admission
The auction is held at the premises of the Company or any location where the Company has control of for the auction. The Company has full discretion to exercise the right to refuse entry to the premises for the auction or to prevent participation in the auction.
b.Registration Prior to the Bidding
The Prospective Buyers must fill in and sign the registration forms prior to the bidding and provide personal identification. The Prospective Buyers should also note that the Company may be requested to conduct credit checks against Buyers.
c.The Bidder is the Buyer
Unless a written agreement has been made upon registration that the bidder will be the agent who acts on behalf of a third person and such third person is accepted by the Company, the bidder will be deemed as the Buyer who will bear individual legal responsibilities.
d. Commission Bids
The Company will make the proper effort to bid for the Prospective Buyers who instruct us to bid on their behalf by using the forms attached to the explanations of the catalogue; provided, however, bid commission instructions are delivered to the Company prior to the auction. If the Company receives several commission bids for one particular item, with all bid prices being equal and of the highest bid price at the auction, priority shall be given to the Buyer whose bid commission is delivered to the Company first. Commission bids are subject to auction conditions. The situation at the auction may prevent the Company from making the bid as commissioned. This is a free service provided by the Company to the Prospective Buyers pursuant to the provisions prescribed.The Company will not be held legally liable if it fails to make the bid as commissioned. The Prospective Buyers should attend the auction in person if they wish to ensure a successful bid.
e.Bid by Phone
The Company will make proper effort to contact the bidder so he can participate in the auction by phone if the Prospective Buyer makes arrangements with the Company prior to the auction. However, the Company will bear no responsibilities to the Seller or any Prospective Buyer if no contact is made or any failure to participate in the auction by phone under any circumstances.
f.Online Bids via LiveAuctioneers
If the bidder cannot attend the auction, it may be possible to bid online via LiveAuctioneers for selected Lots to bear individual buyers’ responsibilities. This service is free and confidential. For information about registering to bid via LiveAuctioneers, please refer to ravenel.com. Bidders using the LiveAuctioneers service are subject to the additional terms and conditions for online bidding via LiveAuctioneers, which can be viewed at ravenel.com and be revised by the Company from time to time.
g.Exchange Rate Conversion Board
There will be an exchange rate conversion board operating at the auctions. The exchange rate is calculated at the exchange rate of the one-month future goods reported to the Company from the bank when starting business on the day of the auction. Nonetheless, the auction will still be conducted in HKdollars. The exchange rate conversion board is not absolutely reliable and for the reference only. The accuracy of either the Lot numbering shown on the board or the equivalent of the bid price in any foreign currency is not within the control of the Company. The Company will not be responsible for any losses caused by the reliance of the Buyer on the exchange rate conversion board.
h.Recorded Images
There is image projection in the auctions; however, errors may occur during the operation. The Company is not liable for the color accuracy of the reproduced image and whether the projected image corresponds to the item being auctioned.
i.Determining Power of the Auctioneer
The auctioneer has the absolute power to reject any bid, push for bids at his discretion, withdraw any auction items, separate or combine two or more auction items, and if there is any error or dispute, re-auction the items.If the auctioneer announcethe points for attention before the auction or the bidding, the Buyer shall pay attention for any announcement as its own responsibility.
j. Successful Bids
Under the sole discretion of the auctioneer, the fall of the hammer indicates the acceptance of the highest bid price, i.e., the Seller and the Buyer enter into a successful auction agreement.The Buyer shall be responsible to the Seller for performing the obligations and responsibility of a Buyer.
4. Following the Auction
a. The Buyer’s Premium of Each Lot Payable by the Buyer
1. The Buyer should pay the hammer price and, in addition, the Buyer’s Premium to the Company. For hammer price below HK$ 8,000,000 (inclusive), the Buyer’s Premium should be calculated at 20% of the hammer price.
2. For hammer price higher than HK$ 8,000,000, total amount of the Buyer’s Premium should be that the first HK$ 8,000,000 of the hammer price should be calculated at 20% and the rest of the amount of the hammer price should be calculated at 12%.
b. Taxes
All the payments payable by the Buyer to the Company do not include any government tax any commodity or service taxes or any other value added taxes. The Buyer should be responsible for paying any applicable taxes as required by the law.
c. Payment
The Buyer should provide his name and permanent address to the Company upon the successful bid. Relevant bank information, including but without limitations the payment account, should also be provided upon request. All payments due (including the hammer price, Buyer’s Premium and any applicable taxes) should be paid within 7 days following the auction date. The aforesaid provision also applies if the Buyer intends to export the Lot and (may) need the export permit.
If the Buyer fails to pay to the Company all the payments due, the Buyer will not acquire the ownership of the Lot even if the Company has delivered such item to the Buyer. If the payment to The Company are made in any currency other than HK dollars, the Company will collect from the Buyer any foreign exchange expense incurred therefrom, including bank charges and foreign exchange Buyer’s Premiums. The exchange rate of the payments to the Company in any currency other than HK dollars should be the exchange rate reported by the Hong Kong and Shanghai Banking Corporation (HSBC) to the Company on the auction date and should be based on the certificates issued by the Company according to such exchange rate.
d. Collection of the Lot Sold
Unless otherwise agreed by the Company, the Company will hold temporarily the successfully sold Lots until all payments to the Company are made in full. The Lot will be covered by the insurance of the Company from the auction date for 7 days during the temporary holding period. The insurance coverage will terminate upon earlier collection of such item. The Buyer should be responsible for all risks following expiration of the said 7-day period or the collection (whichever is the earlier).
e. Packaging and Transportation
The Buyer is requested to note that he should bear all the risks after expiration of the said 7 days period or from collection of such items(whichever is the earlier), without prejudice to the Company’s right.
f. Referral of Packaging or Transportation Companies
The shipping department of the Company may act as the agent of the Buyer to arrange for delivery. Although we can refer freight forwarders upon special request, the Company will not be held liable for any legal responsibilities in this regard.And the Buyer shall prepay the freight charges.
g. Remedies for Non-Payment of Items Sold
The Company is entitled to exercise one or more of the following rights or remedies if the Buyer fails to make payment within 7 daysfollowing the auction date:
1. An interest at the annual rate of no higher than 10% plus the base interest rate of Hong Kong and Shanghai Banking Corporation (HSBC) will be imposed on all of the payment due if payment is not made within 7 days following the auction date. Besides, we have the right of charging also 1% selling price (including of hammer price and the commission) multiplied by the number of delayed days as fine for the default. The payment to be made by the Buyer mayoffset any payment owed by the Company or its subsidiaries to the Buyer for any other transactions upon the Company’s sole decision.
2. To exercise lien of any items owned by the Buyer and held by the Company for any purposeincluding but without limitations other transactions. The Company may arrange to sell such items after serving a 14-day notice to the Buyer about his non-payment. The proceeds shall make up for the payment due.
3. If the Buyer owes the Company several payments as a result of different transactions, the payments will setoff any payments due in any particular transaction, regardless of whether the Buyer specifies to setoff such payments.
4. Refuse the Buyer to make, or to make on behalf of others, bids in any future auctions and/or to require a security deposit from the Buyer before accepting any future bids from him. If the Buyer fails to make payment within 35 days, the Company is entitled to exercise one or more of the following rights in addition to the aforementioned:
(a)To bring legal proceedings against the Buyer on behalf of the Seller to claim the entire payment due and the legal fees and attorney fees resulting from such proceeding based on a total claim.
(b)Cancel the transaction of Lots bid by the Buyer or any other auction items sold to the Buyer at the same or any other auctions.
(c)To arrange a public or private re-sale of the Lot. If the re-selling price is lower, the difference will be claimed against the Buyer together with any cost incurred as a result of the non-payment by the Buyer.
h. No Collection of the Lot Sold
The Company will arrange for the storage of the Lot if such item sold is not collected within 7 days following the successful auction, regardless of payment. Such storage cost will be borne by the Buyer. Only when the storage, shipping, insurance cost and any other expenses together with any other payments due to the Company are paid in full can the sold Lot be collected.
i. Export Permit
Except where otherwise agreed in writing by the Company, the fact that the Buyer's wishes to apply for an export permit does not affect the Buyer's responsibility to make the payments in 7 days following the auction date; nor does it affect the Company's right to impose interest on delayed payments.
If the Buyer requests that the Company applies for the export permit on his behalf, the Company is entitled to collect monies made in connection with such an application and any miscellaneous expenses together with any relevant value added taxes.
If the Buyer makes the payment regardless of the fact that an export permit is needed, the Company is not responsible for returning to the Buyer any interest or other expenses incurred therefrom.
5. The Legal Responsibility of the Company
The Company is responsible for returning payment to the Buyer pursuant to Article 2, Section 6. Otherwise, whether the Buyer, the Company, any employees or agents of the Company will not be held liable for any statements of the author, history, date, year, ownership, authenticity or origin of any auction item or any errors with respect to any explanations and any flaws or defects of any auction item. The Buyer, the Company, the employees or the agents of the Company make no guarantee impliedly or explicitly with respect to any auction items. Any warranty of any kind shall not be included herein.
6. Return of Payments for Counterfeits
The transaction will be cancelled and payments made before remit to the Seller will be returned to the Buyer if the Lot of the Company is confirmed to be a counterfeit by the professional appraisal party agreed and recognized by the Company in writing. However, if:
a. The catalogue explanations or the notice at the auction distributed on the auction day corresponds to the opinions generally accepted by the academic or professional fields or explicitly indicates it conflicts with the opinions generally accepted by the academic or professional fields; or
b. The method used to prove that the Lot is a counterfeit is a scientific procedure not generally accepted for use before the publication of the catalogue or a procedure unreasonably expensive on the day of the auction, or impractical, or may cause damage to the Lot; the Company is not liable for the return of any payment under any circumstances. In addition, the Buyer's payment can only be refunded when the following terms are met:
(1)The Buyer must notify the Company in writing within 10 days following the auction day that he considers the relevant auction item a counterfeit. The Buyer must return the Lot to the Company within 14 days following the said notice and the condition of the item must be the same as on the auction day and without any damage.
(2)Upon returning the Lot, the Buyer must present evidence as soon as possible to convince the Company that the Lot is a counterfeit（The Company has the final and sole discretion and decision and such decision shall not be objected in this regard）. The Buyer may also assign the good ownership of the Lot to the Company, which shall not concern any third party claim.
Under no circumstances is it necessary for the Company to pay the Buyer an amount more than what the Buyer pays in connection with the Lot and the Buyer can not claim interests.
The interests of the warrantee cannot be assigned and belong solely to the Buyer who receives the original invoice on which such Buyer’s name is recorded from the Company when the Lot is sold. Such Buyers shall remain the owner of the auction Lot and cannot assign any interest of the Lot to any other person. The Company is entitled to ascertain that the Lot is not a counterfeit based on a scientific procedure or any other procedure, regardless of whether such procedure is being used on the day of the auction.If the result of appraising and verifying whether the Lot is a counterfeit by the Company conflicts with the evidence provided by the Buyer, the Company’s said result shall prevail over the evidence provided by the Buyer.
Article 3.The Seller
1. The Company as the Agent
The Company acts as the agent of the Seller at a public auction. The Closing Agreement of the Lot is the agreement by and between the Buyer and the Seller, through the agency of the Company on behalf of the Seller. The Seller shall be responsible to the Buyer for performing the obligations and responsibility of a seller.
2. Expenses
The Seller shall bear costs relating to the following:
a. Packing of the Lot and shipping to the Company for the auction
b. Any applicable shipping insurance
c. The packaging and shipping if the item is delivered back to the Seller. Any applicable custom duties
d. Insured under the Company art relic insurance policy (explained in detail later) indicate cohere (we point below)
e. Any repairs made to the Lot as per prior agreement with the Seller
f. Authentication made by independent professionals appointed by the Company which the Company believes to be necessary in preparing the catalogue explanations.
g. Any independent professional opinions appointed by the Company which the Company deems proper
h. The storage, loading and unloading and custody of the Lot after the auction (if applicable)
i. The administration cost of the Company reaches the total amount of 10% of all the expenses and 10% of the damages incurred as a result of client services provided.
j. Any marketing and promotional expenses
3. Insurance Coverage to be Arranged by the Company
a. Unless otherwise agreed by the Company, the Lot will be automatically insured under the the Company art relic policy in the amount as deemed appropriate and estimated by the Company. However, the insured amount is not the amount the Company undertakes to be successfully reached during the auction.
b. The Company will collect 1% of the hammer price from the Seller or 1% of the Reserve Price if the Lot is not successfully auctioned as the insure premium . If the shipping is arranged by the Company, an additional amount will be collected by the Company from the Seller as the shipping insurance. Such amount varies depending on the individual condition of each auction item. The Company will refer a freight forwarder if necessary. However, in no event shall the Company be not responsible for any legal responsibilities and liabilities incurred therefrom.
c. The Lot will remain insured up to 7 days after the auction date. If the Lot has not been sold, it will be at the Seller's risk upon the expiry of 7 days.
d. We are unable to accept responsibility for damage caused by woodworm or changes in atmospheric conditions, moisture, force majeure or unforeseeable conditions, or any reason not attributable to the Company.
4. Insurance Purchased by the Owner
If the Seller instructs the Company specifically that it is unnecessary to purchase insurance for the Lot, the risks shall be borne entirely by the Seller until the Buyer makes all the paymentsand the Lot is delivered to the Buyer. The Seller must indemnify the Company, the employees and agents of the Company and the Buyer (if applicable) any claims in connection with the auction against the Company, the employees and agents of the Company and the Buyer, regardless of the cause of such claim, without any conditions. The Buyer must be responsible and also pay for the expenses incurred as a result of such claim if requested by the Company, the employees and agents of the Company and the Buyer, even if such expenses are made as a result of negligence by the Company, the employees and agents of the Company and the Buyer without proof of legal responsibility. The Seller must informby himself/herself the underwriter of the Seller the provision herein.
5. Commitments Made by the Seller with Respect to the Lot
The standards for the Company to handle the Lots are provided hereunder. These standards also stipulate and limit the sale relationship between the Seller and Buyer. In the event such standards are incorrect in any aspect, the Company or the Buyer may bring legal actions against the Seller.
The Company should base the purchase and handling of auction items on the following undertaking made by the Seller:
a. The Seller is the only legal owner of the Lot and has the unlimited rights to assign his ownership to the Buyer which should not concern any third party right or claim (including but without limitations copyright claims, liens, mortgage).
b. The Seller complies with all the laws in connection with the import and export of auction items and any other laws and has notified the Company in writing any failure to comply with such rules in the past.
c. The Seller has notified the Company in writing of any major modifications in the Lot to the best of his knowledge and any concern the third party has raised with respect to the ownership of the Lot and the condition.
In the event of any inaccuracy of the above a, b and c now or in the future, the Seller must guarantee, if requested, to identify fully the Company and/or the Buyer all the claims, legal fees, attorney fees or other costs and expenses arising herefrom, whether caused by the Lot or the auction proceeds.
6. Auction Arrangements
a. The Company has absolute discretion over the description of the auction in the catalogue, display layouts, authentication opinions, location and method of the auction, who will be allowed to bid and the acceptance of the bid price, whether to seek professional opinion and whether to combine or separate the Lots.
b. Any price estimates, whether verbal or written are strictly opinions and shall not serve as a guarantee of the final price for the Lot to be sold.
c. The Seller cannot withdraw the sale of the Lot without obtaining the prior written consent from the Company. The Company reserves the right to withdraw, suspend, or terminate the sale and authorization of the Lots for the following reasons. These reasons include:
1. The Company is doubtful about the definition or authenticity of the Lot or the accuracy of the statement referred to in Articles 5a, b. or c; or
2. Any violations of the Transaction Agreement; or
3. The Company deems it inappropriate to include the Lot in the auction.
d. Withdrawal of Mandate or Authorization
(1)The Seller may not withdraw, suspend or terminate his/her/its mandate for the Item(s) or the authorization to the Company under this Agreement without prior written consent of the Company.
(2)In the case of such withdrawal, suspending or termination stated in paragraph A, the Seller shall pay the Company an amount equivalent to 40% of the Reserve Price as punitive damages in addition to the compensation for damages or economic loss to the Company.
(3)In case of default or breach of this Agreement, the Company may cancel or terminate this Agreement anytime and the Seller shall also pay all costs and expenses incurred by the Company under this Agreement.
7. Auction Rules
a. The Company will auction the item according to the Reserve Price. The Reserve Price may not be higher than the minimum of the estimates set in the catalogue except otherwise if the Reserve Price agreed is in a currency other than HK dollars and the ReservePrice is higher than the minimum of the estimates caused by the exchange rate fluctuation between the Reserve Price agreement day and the auction day. Under such circumstances, except where otherwise agreed by the Company, the ReservePrice shall be in HK dollars calculated by the exchange rate at the closing of the market the day immediately before the successful auction.
b. If the bid price is lower than the ReservePrice, the Company is in no way to be held liable; however, the Company is entitled to auction the item at a price lower than the ReservePrice. If the Company so auctions the item, the Company is responsible to pay the Seller the difference between the closing price and the ReservePrice.
c. The Seller may not increase the price with his own or other third parties’ name, nor participate in the bidding of his/her/its auction item(s)with his own or other third parties’ name, however, The Company is authorized to bid on behalf of the Seller at the price not higher than the Reserve Price.
8. After the Successful Auction
a. Settlement
Upon the successful auction, the Company will request the Buyer to make full payment no later than within 7 days following the auction date, including the compensation payable by the Buyer. Upon payment by the Buyer, unless the Company receives a notice claiming such auction item is a counterfeit (as defined in Article 2 of the Transaction Agreement) or other necessary conditions, the Company will remit to the Seller within 60 workdays following the successful auction day an amount equal to the closing price taking away all the expenses payable by the Seller. In the event the Buyer delays the payment, the Company will remit to the Seller within 7 workdays following the payment in full by the Buyer.
Unless otherwise instructed by the Seller in writing, the Company will make its payment in HK dollars. If the Seller requests to pay in currencies other than HK dollars, the exchange rate should be according to what the Hong Kong and Shanghai Banking Corporation (HSBC) reports and the Company announces on the auction date.
b. Closing of the Transaction and Handling Fee
(1)The transaction is closed when the Buyer has paid the Company in full after the auction.
(2)The handling fee is payable to the Company after the closing of the transaction.
c. Non-payment by the Buyer
If the Buyer fails to make all the payments due within 7 days following the auction day, the Company is entitled to negotiate special terms in connection with the payments, storage, and insurance on behalf of the Seller and act as deemed necessary by the Company to collect payments payable from the Buyer.Any and all damages, costs, expenses or fees incurred shall be borne by the Seller. However, the Company is not responsible for making payment to the Seller nor for bringing any legal actions on behalf of the Seller. The Company will discuss with the Seller to adopt appropriate actions to claim auction payments from the Buyer.
d. Counterfeits
If the Buyer convinces or make the Company doubt that the Lot is a counterfeit (as defined in Article 1 of the Transaction Agreement) or stolen good or involved in any illegality within ten (10) days after the Buyer settles all payments and collects the Lot from the Company, the Company will return the hammer price (The Company may deduct the reasonable expenses and fees incurred) received from the Buyer and the Lot will be returned to the Seller or forwarded to the Police for handling. The Seller shall not object to the Company’s decision and handling in accordance with this Lot and make any claim or allegation. The Company will notify the Seller of such matter and the Seller shall return to the Company without objection the entire payment received within three (3) days of such notification, and shall pay the Company fees and expenses, and any and all losses, damages or related expenses and fees. In case that the Seller’s failure of payment and compensation obligations, the Seller shall pay the interest for delay of the entire payment by the best saving rate of the Hong Kong and Shanghai Banking Corporation (HSBC)plus ten percent (10%) per annum.
In addition, the Company may collect one percent (1%) of the total amount of the hammer price plus the Buyer’s Premium paid by the Buyer as the compensations for breach of contract. The Company may decide to offset the Seller’s payment payable to the Company from the Company’s or other subsidiaries’payments due to the Seller in other transactions.
e. Items Not Successfully Auctioned
(1)Any items not successfully auctioned, not included in the auction or withdrawn from the auction for any reason must be collected by the Seller within 35 days upon notification by the Company to the Seller that he must reclaim the Lot.
(2)A storage fee of HK$300 per day per piece will be imposed on each item not collected after such 35 day period together with an additional charge for purchasing insurance coverage. The Seller may not reclaim such item until all the payments due are made.
(3)Such items may be removed to a third party warehouse if not collected in 60 days after the notification of collection is issued. The expenses arising therefrom shall be borne by the Seller.
(4)The Company may dispose of the Lot in the manner it deems appropriate if such item is not collected within 90 days following the auction date or the notice date (whichever is the earlier). Such disposal includes removing the item to a third party warehouse with the associated expenses borne by the Seller and to auction such items under terms deemed appropriate by the Company (including the terms of estimates and the ReservePrice). The Company will pay the Seller the auction proceeds after payments owed are offset.
(5)The Company is authorized to act as the sole agent of the Seller within 2 months following the auction for any auction item withdrawn from the auction or not sold. The Company may auction in private the item based on the net amount the Seller may receive (the amount after deducting all the expenses payable by the Seller) or sell such item in private at a lower price agreed upon by the Company and the Seller. The Company has the rights to offset all expenses payable by the Seller in advance. Under such circumstances, the Seller's responsibilities and liabilities to the Company are the same as during an auction.
9. Photographs and Display
The Seller agrees the Company have rights to make the photographs, illustration, recordings and other reproduced images of the Lot. The Company owns all rights to the photographs, illustration,recordings and other reproduced images of the Lot made by the Company. All the rights(including but without limitation the copyright) of such images shall belong to the Company and the company is entitled to use such images in any manner it deems appropriate,and the Seller has no objection.
10. Taxes
a. According to the tax laws of Hong Kong, The Company shall submit to the competent revenue agency the name of the Seller and other relevant documents supplied by the Seller.
b. If the Seller is a Hong Kong resident (corporation or individual), according to the tax laws of Hong Kong, no withholding amount of the profit tax will be deducted. However, The Company shall reserve the rights to claim for the tax amount and other related expenses (including but not limited to interests, penalty) from the Seller if the representation made or document provided by the Seller is not true.
c. Where the Seller is a foreigner, the Seller agrees that The Company may deduct an amount equivalent to 0.5% of the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) and submit the deducted amount as Profits tax to the competent revenue agency. The amount to be withheld by The Company shall be subject to change once the applicable tax rate is adjusted.
Article 4.Terms Applicable to Both the Buyer and the Seller
1. Intellectual Property Rights
Intellectual property rights (including but without limitations, the copyright or patent) of all the images, photographs and written material in connection with the Lot shall maintain and belong to the Company at any time. The Buyer or any person may not use such items without obtaining prior written consent from the Company.
2. Notices
All the notices distributed according to the Transaction Agreement herein shall be made in writing. Any notice shall be deemed served to the recipient on the second day following delivery if sent by mail. If the recipient is abroad, the notice shall be deemed served on the fifth working day following delivery by mail.
3. Severability
(1)If any part of the Transaction Agreement is deemed invalid, illegal or unenforceable by any court, such part can be ignored and the rest of the Transaction Agreement continues to be valid and enforceable to the maximum extent permitted by the law.
(2) The conditions of the Buyer under Article 2 exclusively apply to the relationship between the Company and the Buyer, which the Seller shall not apply. And the conditions of the Seller under Article 3 exclusively apply to the relationship between the Company and the Seller, which the Buyer shall not apply.
4. This Agreement is entered into the parties in English and Chinese. If there is any conflict with two versions, the Chinese version shall prevail.
5. This Agreement may be revised or modified by the Company from time to time, and the Prospective Buyer, the Buyer andthe Seller agree to obey the revision or modification.
6. Jurisdiction
The Transaction Agreement is governed under the Hong Kong laws and the interpretation and effect of the Rules shall be subject to the laws of Hong Kong. The Buyer and Seller shall submit themselves to the exclusive jurisdiction of the Hong Kong courts for the interests of the Company.
Article 1.Definition
Some of the phrases commonly seen herein are defined as follows:
1. "The Buyer" shall mean highest bidder accepted by the Company.
2. “The Prospective Buyer” shall mean any potential bidder willing to attend the auction salehosted by the Company.
3. “The Seller” shall mean the mandator who provides the Lot and agrees to appoint the Company as its exclusive agent to sell the Lot at the Auction and participate, and cooperate, in exhibitions prior to the Auction if so required by the Company.
4. "The Lot" shall mean the item delivered to the Company to be sold in an auction, especially the single or multiple pieces of items numbered in the catalogue.
5. "Hammer price" shall mean the highest bid with respect to one particular auction item accepted by the auctioning party.
6. "The Buyer’s Premium paid by the Buyer" shall mean the fee based on a certain percentage of the Hammer price paid by the Buyer; the percentage shall be as prescribed in Article 2, Section 4a.
7. "The Reserve Price" shall mean the lowest price agreed by the Company and Seller. The Lot cannot be sold at a price lower than such price.
8. "Counterfeit" shall mean the Lot constitutes imitation and the original concept of the imitation and its overall execution result in fraud to cause deception in connection with the author, history, year, age, culture or origin of the Lot, for which the accurate description is not reflected in the catalogue and the value of the Lot on the auction day is far less than the value it should have according to the description in the catalogue. Therefore, no auction item will become a counterfeit as a result of any damage and/or any repairing in any manner (including repaints).
9. "Insured amount" shall mean the value of the insurance purchased for the Lot which the Company considers necessary under its absolute power from time to time (regardless whether such insurance is purchased by the Company).
Article 2.The Buyer
1. The Company as the Agent
The Company, as the auctioning party, shall act as the agent of the Seller. Except otherwise provided, items successfully sold in the auction held by the Company shall be bound by the agreement made by and between the Seller, through the agency of the Company, and the Buyer.
2. Prior to the Auction
a. Authentication
We strongly recommend that the prospective buyers conduct their own authentication for the items they are interested in bidding prior to the auction. We provide no guarantees to the buyer including but without limitations whether the Lot is a counterfeit or the authentication of the Lot’s certificates (with the exception of the guarantee with regard to counterfeits as defined in Article 1 of the Transaction Agreement).
b. Important Notice
Attention, the Prospective Buyers: As far as possible, the descriptions of auction items will mention obvious defects of the items; however, they do not necessarily include all flaws, defects, or incomplete aspects. The Company does not guarantee that the Lots on auction are in good working condition and the descriptions in the catalogue must not be construed as implying such. The description of the auction items also do not imply that the items have not gone through readjustment or repair or allude anything about the current state or storage conditions of the items. Any omission in the catalogue description regarding the current condition or the appraisal of defects in the items by no means represent that those items are in good condition, function normally, or that there will be any free repair or replacement of parts. We strongly recommend the Prospective Buyers to personally view the items for which they plan to bid before the auction itself. If a Prospective Buyer is unable to view an item for whatever reason, then in our role as a service provider, we would be more than happy to offer our opinion of an item's special characteristics and current condition. However, the Company is not a professional restorer of the Lots; therefore, any description in the catalogue or any statement provided by the Company is purely the Company's subjective opinion and not a statement of fact, not for representations or warranties.
The Prospective Buyer completely understands and acknowledges that all of the items on auction are being sold in "as is" condition.The Company does not provide any representation or guarantee as to the conditions of any of the items. Unless otherwise stated in laws of Hong Kong, the Company does not provide any warranty with the items.
c. Symbol Key
The following key explains the symbol you may see inside this catalogue.
Premium Lot
In order to bid on "Premium Lots" the Buyer must complete the required pre-registration application and deliver to The Company such necessary financial references, guarantees, deposits and / or such other security as The Company's may in its absolute discretion require for your bid. The Companydecision whether to accept any pre-registration application shall be final. We recommend you complete and return the Lot pre-registration form in this catalogue in the manner required therein or contact the Company at least 5 working days prior to the relevant sale in order to process the pre-registration. Please bear in mind that we are unable to obtain financial references over weekends or public holidays. The Company will provide a special paddle number for the register of "Premium Lot".
ｏGuaranteed Property
The Seller of the Lots with this symbol next to the Lot number has been guaranteed a minimum price from one auction or a series of auctions. This guarantee may be provided by the Company, by a third party or jointly by the Company and a third party. A guarantee may be in the form of an irrevocable bid provided by a third party. Third parties providing or participating in a guarantee may benefit financially if a guaranteed Lot is sold successfully and may incur a loss if the sale is not successful. If third parties providing or participating in a guarantee is the successful bidder for the guaranteed Lot, they should be required to pay the full Buyer’s Premium.
ƐEndangered Species
Property made of or incorporating endangered and other protected species of wildlife are marked in the catalogue with a symbol (Ɛ) next to the title of the said lot. Such materials include coral, ivory, tortoiseshell, crocodile skin, rhinoceros horn, whalebone, etc. The Buyers should be aware that some countries prohibit altogether the importation of property containing such materials, and that other countries may require a licence or certificate (e.g. a CITES permit) in the countries of exportation as well as importation. For example, the United State prohibits the importation of elephant ivory that is less than 100 years old. The Company suggests that the Buyers check with their own government regarding wildlife import requirements prior to placing a bid. Please note that it is the Buyer’s responsibility to obtain any licences and/or certificates as well as other required documentation applying to the importation or exportation of the property containing endangered and other protected wildlife materials. The Buyers completely acknowledge and understand the inability to import or export such property is not a basis for cancellation or rescission of the sale.
Burmese Stones
Lots which contain rubies or jadeite originating In Burma (Myanmar) may be prohibited to be imported into the United States. As a convenience to our bidders, we have marked these lots with ( ). The Buyers completely acknowledge and understand that any inability to import any such Lots into the U.S. or any other country shall not constitute grounds for non-payment or cancellation of the sale.
With respect to the Lots that contain any other types of gemstones originating in Burma (e.g., sapphires), such Lots may have the possibility to be imported into the U.S., provided that gemstones have been mounted or incorporated into jewellery outside of Burma and provided that the setting is not of a temporary nature (e.g., a string).
Importation of watches into the USA
The Prospective Buyers should be aware that the importation of luxury watches such as Rolex into the United States is highly restricted. These watches (not limited to Rolex) may be prohibited to be shipped into the USA and can only be imported personally. Generally, a buyer may import and wear only one watch into the USA. In this catalogue these watches have been marked with ( ).
It is the Buyer's sole responsibility to determine whether there are any Import restrictions and to comply with such restrictions. The Buyers completely acknowledge and understand that the failure by the Company to mark a lot with ( ) shall not constitute grounds to rescind or cancel a sale.
d. Catalogue Explanations
Any statement of the author, history, date, year, size, material, ownership, authenticity, origin, condition of preservation or estimated selling price of any of the Lots and certificates thereof shown in the catalogue or the authentication opinion made by the Company, or any other verbal or written statements made separately shall be solely statements of opinions and shall not be deemed the basis for the statements of actual fact. The photographs shown in the catalogue shall serve as reference only and shall not be deemed as the basis for determining the color or tone of any Lots or disclosure of the defects of such item. The estimates of the auction price shall not be deemed the price at which such item will be successfully sold or the statement of the value of the item for other purposes.
Many auction items fail to maintain their perfect condition because of time and other environmental factors. Some of the explanations in the catalogue or the authentication opinions will state defects and/or the repair background of the Lots. Such information is meant for reference only. Missing information in the statements does not mean the Lot has no defects or has not been repaired. Any statement of one particular defect does not mean there is no any other defect.
All the lots in this catalogue are offered subject to a reserve, which is the confidential minimum price established between the Company and the seller and below which the lot will not be sold. The Reserve Price will not exceed the low estimate for the lot. If any lots are offered without a reserve, these lots will be identified with the red title, and a Special Note will be included to this effect.
The description of the condition of clocks and watches in this catalogue, including references to defects and repairs, is provided as a service to prospective buyers, but such description is not necessarily complete. While The Company will furnish a condition report on any lot to a prospective purchaser upon request, any such report may also be incomplete and may not specify all mechanical replacements or defects. Accordingly, all clocks and watches should be viewed personally by prospective buyers to evaluate the condition of the property offered for sale. All lots are sold "as is", and absence of any reference to the condition of a clock or watch does not imply that the lot is in good condition and without defects, repairs or restorations. Virtually all clocks and watches have been repaired in the course of their normal useful lifetime and may now incorporate parts not original to them. Furthermore, The Company makes no representation or warranty that any clock or watch is in working order.
It should be noted that most wristwatches with water-resistant cases have been opened to identify type and quality of movement. It cannot be assumed that the watches are still waterproof and the Buyers are advised to have the watches checked by a competent watch-maker before use.
Please note that gold of less than 18ct. does not quality in all countries as 'gold' and may be refused import. The Company cannot accept liability if import is refused.
Please note that all Rolex watches in the The Company sale catalogue are sold as viewed and that The Company cannot guarantee the authenticity of any individual component part of these Rolex watches. The bracelets described as "associated" are not part of the original piece and may not be authentic.
e. Responsibility of the Buyer
The Buyer is responsible for clarifying and satisfying himself about the condition of the items and any related matters stated in the catalogue descriptions and making his/her own judgment or estimation independently regarding the Lots.
3. In the Auction
a. Refusal of Admission
The auction is held at the premises of the Company or any location where the Company has control of for the auction. The Company has full discretion to exercise the right to refuse entry to the premises for the auction or to prevent participation in the auction.
b.Registration Prior to the Bidding
The Prospective Buyers must fill in and sign the registration forms prior to the bidding and provide personal identification. The Prospective Buyers should also note that the Company may be requested to conduct credit checks against Buyers.
c.The Bidder is the Buyer
Unless a written agreement has been made upon registration that the bidder will be the agent who acts on behalf of a third person and such third person is accepted by the Company, the bidder will be deemed as the Buyer who will bear individual legal responsibilities.
d. Commission Bids
The Company will make the proper effort to bid for the Prospective Buyers who instruct us to bid on their behalf by using the forms attached to the explanations of the catalogue; provided, however, bid commission instructions are delivered to the Company prior to the auction. If the Company receives several commission bids for one particular item, with all bid prices being equal and of the highest bid price at the auction, priority shall be given to the Buyer whose bid commission is delivered to the Company first. Commission bids are subject to auction conditions. The situation at the auction may prevent the Company from making the bid as commissioned. This is a free service provided by the Company to the Prospective Buyers pursuant to the provisions prescribed.The Company will not be held legally liable if it fails to make the bid as commissioned. The Prospective Buyers should attend the auction in person if they wish to ensure a successful bid.
e.Bid by Phone
The Company will make proper effort to contact the bidder so he can participate in the auction by phone if the Prospective Buyer makes arrangements with the Company prior to the auction. However, the Company will bear no responsibilities to the Seller or any Prospective Buyer if no contact is made or any failure to participate in the auction by phone under any circumstances.
f.Online Bids via LiveAuctioneers
If the bidder cannot attend the auction, it may be possible to bid online via LiveAuctioneers for selected Lots to bear individual buyers’ responsibilities. This service is free and confidential. For information about registering to bid via LiveAuctioneers, please refer to ravenel.com. Bidders using the LiveAuctioneers service are subject to the additional terms and conditions for online bidding via LiveAuctioneers, which can be viewed at ravenel.com and be revised by the Company from time to time.
g.Exchange Rate Conversion Board
There will be an exchange rate conversion board operating at the auctions. The exchange rate is calculated at the exchange rate of the one-month future goods reported to the Company from the bank when starting business on the day of the auction. Nonetheless, the auction will still be conducted in HKdollars. The exchange rate conversion board is not absolutely reliable and for the reference only. The accuracy of either the Lot numbering shown on the board or the equivalent of the bid price in any foreign currency is not within the control of the Company. The Company will not be responsible for any losses caused by the reliance of the Buyer on the exchange rate conversion board.
h.Recorded Images
There is image projection in the auctions; however, errors may occur during the operation. The Company is not liable for the color accuracy of the reproduced image and whether the projected image corresponds to the item being auctioned.
i.Determining Power of the Auctioneer
The auctioneer has the absolute power to reject any bid, push for bids at his discretion, withdraw any auction items, separate or combine two or more auction items, and if there is any error or dispute, re-auction the items.If the auctioneer announcethe points for attention before the auction or the bidding, the Buyer shall pay attention for any announcement as its own responsibility.
j. Successful Bids
Under the sole discretion of the auctioneer, the fall of the hammer indicates the acceptance of the highest bid price, i.e., the Seller and the Buyer enter into a successful auction agreement.The Buyer shall be responsible to the Seller for performing the obligations and responsibility of a Buyer.
4. Following the Auction
a. The Buyer’s Premium of Each Lot Payable by the Buyer
1. The Buyer should pay the hammer price and, in addition, the Buyer’s Premium to the Company. For hammer price below HK$ 8,000,000 (inclusive), the Buyer’s Premium should be calculated at 20% of the hammer price.
2. For hammer price higher than HK$ 8,000,000, total amount of the Buyer’s Premium should be that the first HK$ 8,000,000 of the hammer price should be calculated at 20% and the rest of the amount of the hammer price should be calculated at 12%.
b. Taxes
All the payments payable by the Buyer to the Company do not include any government tax any commodity or service taxes or any other value added taxes. The Buyer should be responsible for paying any applicable taxes as required by the law.
c. Payment
The Buyer should provide his name and permanent address to the Company upon the successful bid. Relevant bank information, including but without limitations the payment account, should also be provided upon request. All payments due (including the hammer price, Buyer’s Premium and any applicable taxes) should be paid within 7 days following the auction date. The aforesaid provision also applies if the Buyer intends to export the Lot and (may) need the export permit.
If the Buyer fails to pay to the Company all the payments due, the Buyer will not acquire the ownership of the Lot even if the Company has delivered such item to the Buyer. If the payment to The Company are made in any currency other than HK dollars, the Company will collect from the Buyer any foreign exchange expense incurred therefrom, including bank charges and foreign exchange Buyer’s Premiums. The exchange rate of the payments to the Company in any currency other than HK dollars should be the exchange rate reported by the Hong Kong and Shanghai Banking Corporation (HSBC) to the Company on the auction date and should be based on the certificates issued by the Company according to such exchange rate.
d. Collection of the Lot Sold
Unless otherwise agreed by the Company, the Company will hold temporarily the successfully sold Lots until all payments to the Company are made in full. The Lot will be covered by the insurance of the Company from the auction date for 7 days during the temporary holding period. The insurance coverage will terminate upon earlier collection of such item. The Buyer should be responsible for all risks following expiration of the said 7-day period or the collection (whichever is the earlier).
e. Packaging and Transportation
The Buyer is requested to note that he should bear all the risks after expiration of the said 7 days period or from collection of such items(whichever is the earlier), without prejudice to the Company’s right.
f. Referral of Packaging or Transportation Companies
The shipping department of the Company may act as the agent of the Buyer to arrange for delivery. Although we can refer freight forwarders upon special request, the Company will not be held liable for any legal responsibilities in this regard.And the Buyer shall prepay the freight charges.
g. Remedies for Non-Payment of Items Sold
The Company is entitled to exercise one or more of the following rights or remedies if the Buyer fails to make payment within 7 daysfollowing the auction date:
1. An interest at the annual rate of no higher than 10% plus the base interest rate of Hong Kong and Shanghai Banking Corporation (HSBC) will be imposed on all of the payment due if payment is not made within 7 days following the auction date. Besides, we have the right of charging also 1% selling price (including of hammer price and the commission) multiplied by the number of delayed days as fine for the default. The payment to be made by the Buyer mayoffset any payment owed by the Company or its subsidiaries to the Buyer for any other transactions upon the Company’s sole decision.
2. To exercise lien of any items owned by the Buyer and held by the Company for any purposeincluding but without limitations other transactions. The Company may arrange to sell such items after serving a 14-day notice to the Buyer about his non-payment. The proceeds shall make up for the payment due.
3. If the Buyer owes the Company several payments as a result of different transactions, the payments will setoff any payments due in any particular transaction, regardless of whether the Buyer specifies to setoff such payments.
4. Refuse the Buyer to make, or to make on behalf of others, bids in any future auctions and/or to require a security deposit from the Buyer before accepting any future bids from him. If the Buyer fails to make payment within 35 days, the Company is entitled to exercise one or more of the following rights in addition to the aforementioned:
(a)To bring legal proceedings against the Buyer on behalf of the Seller to claim the entire payment due and the legal fees and attorney fees resulting from such proceeding based on a total claim.
(b)Cancel the transaction of Lots bid by the Buyer or any other auction items sold to the Buyer at the same or any other auctions.
(c)To arrange a public or private re-sale of the Lot. If the re-selling price is lower, the difference will be claimed against the Buyer together with any cost incurred as a result of the non-payment by the Buyer.
h. No Collection of the Lot Sold
The Company will arrange for the storage of the Lot if such item sold is not collected within 7 days following the successful auction, regardless of payment. Such storage cost will be borne by the Buyer. Only when the storage, shipping, insurance cost and any other expenses together with any other payments due to the Company are paid in full can the sold Lot be collected.
i. Export Permit
Except where otherwise agreed in writing by the Company, the fact that the Buyer's wishes to apply for an export permit does not affect the Buyer's responsibility to make the payments in 7 days following the auction date; nor does it affect the Company's right to impose interest on delayed payments.
If the Buyer requests that the Company applies for the export permit on his behalf, the Company is entitled to collect monies made in connection with such an application and any miscellaneous expenses together with any relevant value added taxes.
If the Buyer makes the payment regardless of the fact that an export permit is needed, the Company is not responsible for returning to the Buyer any interest or other expenses incurred therefrom.
5. The Legal Responsibility of the Company
The Company is responsible for returning payment to the Buyer pursuant to Article 2, Section 6. Otherwise, whether the Buyer, the Company, any employees or agents of the Company will not be held liable for any statements of the author, history, date, year, ownership, authenticity or origin of any auction item or any errors with respect to any explanations and any flaws or defects of any auction item. The Buyer, the Company, the employees or the agents of the Company make no guarantee impliedly or explicitly with respect to any auction items. Any warranty of any kind shall not be included herein.
6. Return of Payments for Counterfeits
The transaction will be cancelled and payments made before remit to the Seller will be returned to the Buyer if the Lot of the Company is confirmed to be a counterfeit by the professional appraisal party agreed and recognized by the Company in writing. However, if:
a. The catalogue explanations or the notice at the auction distributed on the auction day corresponds to the opinions generally accepted by the academic or professional fields or explicitly indicates it conflicts with the opinions generally accepted by the academic or professional fields; or
b. The method used to prove that the Lot is a counterfeit is a scientific procedure not generally accepted for use before the publication of the catalogue or a procedure unreasonably expensive on the day of the auction, or impractical, or may cause damage to the Lot; the Company is not liable for the return of any payment under any circumstances. In addition, the Buyer's payment can only be refunded when the following terms are met:
(1)The Buyer must notify the Company in writing within 10 days following the auction day that he considers the relevant auction item a counterfeit. The Buyer must return the Lot to the Company within 14 days following the said notice and the condition of the item must be the same as on the auction day and without any damage.
(2)Upon returning the Lot, the Buyer must present evidence as soon as possible to convince the Company that the Lot is a counterfeit（The Company has the final and sole discretion and decision and such decision shall not be objected in this regard）. The Buyer may also assign the good ownership of the Lot to the Company, which shall not concern any third party claim.
Under no circumstances is it necessary for the Company to pay the Buyer an amount more than what the Buyer pays in connection with the Lot and the Buyer can not claim interests.
The interests of the warrantee cannot be assigned and belong solely to the Buyer who receives the original invoice on which such Buyer’s name is recorded from the Company when the Lot is sold. Such Buyers shall remain the owner of the auction Lot and cannot assign any interest of the Lot to any other person. The Company is entitled to ascertain that the Lot is not a counterfeit based on a scientific procedure or any other procedure, regardless of whether such procedure is being used on the day of the auction.If the result of appraising and verifying whether the Lot is a counterfeit by the Company conflicts with the evidence provided by the Buyer, the Company’s said result shall prevail over the evidence provided by the Buyer.
Article 3.The Seller
1. The Company as the Agent
The Company acts as the agent of the Seller at a public auction. The Closing Agreement of the Lot is the agreement by and between the Buyer and the Seller, through the agency of the Company on behalf of the Seller. The Seller shall be responsible to the Buyer for performing the obligations and responsibility of a seller.
2. Expenses
The Seller shall bear costs relating to the following:
a. Packing of the Lot and shipping to the Company for the auction
b. Any applicable shipping insurance
c. The packaging and shipping if the item is delivered back to the Seller. Any applicable custom duties
d. Insured under the Company art relic insurance policy (explained in detail later) indicate cohere (we point below)
e. Any repairs made to the Lot as per prior agreement with the Seller
f. Authentication made by independent professionals appointed by the Company which the Company believes to be necessary in preparing the catalogue explanations.
g. Any independent professional opinions appointed by the Company which the Company deems proper
h. The storage, loading and unloading and custody of the Lot after the auction (if applicable)
i. The administration cost of the Company reaches the total amount of 10% of all the expenses and 10% of the damages incurred as a result of client services provided.
j. Any marketing and promotional expenses
3. Insurance Coverage to be Arranged by the Company
a. Unless otherwise agreed by the Company, the Lot will be automatically insured under the the Company art relic policy in the amount as deemed appropriate and estimated by the Company. However, the insured amount is not the amount the Company undertakes to be successfully reached during the auction.
b. The Company will collect 1% of the hammer price from the Seller or 1% of the Reserve Price if the Lot is not successfully auctioned as the insure premium . If the shipping is arranged by the Company, an additional amount will be collected by the Company from the Seller as the shipping insurance. Such amount varies depending on the individual condition of each auction item. The Company will refer a freight forwarder if necessary. However, in no event shall the Company be not responsible for any legal responsibilities and liabilities incurred therefrom.
c. The Lot will remain insured up to 7 days after the auction date. If the Lot has not been sold, it will be at the Seller's risk upon the expiry of 7 days.
d. We are unable to accept responsibility for damage caused by woodworm or changes in atmospheric conditions, moisture, force majeure or unforeseeable conditions, or any reason not attributable to the Company.
4. Insurance Purchased by the Owner
If the Seller instructs the Company specifically that it is unnecessary to purchase insurance for the Lot, the risks shall be borne entirely by the Seller until the Buyer makes all the paymentsand the Lot is delivered to the Buyer. The Seller must indemnify the Company, the employees and agents of the Company and the Buyer (if applicable) any claims in connection with the auction against the Company, the employees and agents of the Company and the Buyer, regardless of the cause of such claim, without any conditions. The Buyer must be responsible and also pay for the expenses incurred as a result of such claim if requested by the Company, the employees and agents of the Company and the Buyer, even if such expenses are made as a result of negligence by the Company, the employees and agents of the Company and the Buyer without proof of legal responsibility. The Seller must informby himself/herself the underwriter of the Seller the provision herein.
5. Commitments Made by the Seller with Respect to the Lot
The standards for the Company to handle the Lots are provided hereunder. These standards also stipulate and limit the sale relationship between the Seller and Buyer. In the event such standards are incorrect in any aspect, the Company or the Buyer may bring legal actions against the Seller.
The Company should base the purchase and handling of auction items on the following undertaking made by the Seller:
a. The Seller is the only legal owner of the Lot and has the unlimited rights to assign his ownership to the Buyer which should not concern any third party right or claim (including but without limitations copyright claims, liens, mortgage).
b. The Seller complies with all the laws in connection with the import and export of auction items and any other laws and has notified the Company in writing any failure to comply with such rules in the past.
c. The Seller has notified the Company in writing of any major modifications in the Lot to the best of his knowledge and any concern the third party has raised with respect to the ownership of the Lot and the condition.
In the event of any inaccuracy of the above a, b and c now or in the future, the Seller must guarantee, if requested, to identify fully the Company and/or the Buyer all the claims, legal fees, attorney fees or other costs and expenses arising herefrom, whether caused by the Lot or the auction proceeds.
6. Auction Arrangements
a. The Company has absolute discretion over the description of the auction in the catalogue, display layouts, authentication opinions, location and method of the auction, who will be allowed to bid and the acceptance of the bid price, whether to seek professional opinion and whether to combine or separate the Lots.
b. Any price estimates, whether verbal or written are strictly opinions and shall not serve as a guarantee of the final price for the Lot to be sold.
c. The Seller cannot withdraw the sale of the Lot without obtaining the prior written consent from the Company. The Company reserves the right to withdraw, suspend, or terminate the sale and authorization of the Lots for the following reasons. These reasons include:
1. The Company is doubtful about the definition or authenticity of the Lot or the accuracy of the statement referred to in Articles 5a, b. or c; or
2. Any violations of the Transaction Agreement; or
3. The Company deems it inappropriate to include the Lot in the auction.
d. Withdrawal of Mandate or Authorization
(1)The Seller may not withdraw, suspend or terminate his/her/its mandate for the Item(s) or the authorization to the Company under this Agreement without prior written consent of the Company.
(2)In the case of such withdrawal, suspending or termination stated in paragraph A, the Seller shall pay the Company an amount equivalent to 40% of the Reserve Price as punitive damages in addition to the compensation for damages or economic loss to the Company.
(3)In case of default or breach of this Agreement, the Company may cancel or terminate this Agreement anytime and the Seller shall also pay all costs and expenses incurred by the Company under this Agreement.
7. Auction Rules
a. The Company will auction the item according to the Reserve Price. The Reserve Price may not be higher than the minimum of the estimates set in the catalogue except otherwise if the Reserve Price agreed is in a currency other than HK dollars and the ReservePrice is higher than the minimum of the estimates caused by the exchange rate fluctuation between the Reserve Price agreement day and the auction day. Under such circumstances, except where otherwise agreed by the Company, the ReservePrice shall be in HK dollars calculated by the exchange rate at the closing of the market the day immediately before the successful auction.
b. If the bid price is lower than the ReservePrice, the Company is in no way to be held liable; however, the Company is entitled to auction the item at a price lower than the ReservePrice. If the Company so auctions the item, the Company is responsible to pay the Seller the difference between the closing price and the ReservePrice.
c. The Seller may not increase the price with his own or other third parties’ name, nor participate in the bidding of his/her/its auction item(s)with his own or other third parties’ name, however, The Company is authorized to bid on behalf of the Seller at the price not higher than the Reserve Price.
8. After the Successful Auction
a. Settlement
Upon the successful auction, the Company will request the Buyer to make full payment no later than within 7 days following the auction date, including the compensation payable by the Buyer. Upon payment by the Buyer, unless the Company receives a notice claiming such auction item is a counterfeit (as defined in Article 2 of the Transaction Agreement) or other necessary conditions, the Company will remit to the Seller within 60 workdays following the successful auction day an amount equal to the closing price taking away all the expenses payable by the Seller. In the event the Buyer delays the payment, the Company will remit to the Seller within 7 workdays following the payment in full by the Buyer.
Unless otherwise instructed by the Seller in writing, the Company will make its payment in HK dollars. If the Seller requests to pay in currencies other than HK dollars, the exchange rate should be according to what the Hong Kong and Shanghai Banking Corporation (HSBC) reports and the Company announces on the auction date.
b. Closing of the Transaction and Handling Fee
(1)The transaction is closed when the Buyer has paid the Company in full after the auction.
(2)The handling fee is payable to the Company after the closing of the transaction.
c. Non-payment by the Buyer
If the Buyer fails to make all the payments due within 7 days following the auction day, the Company is entitled to negotiate special terms in connection with the payments, storage, and insurance on behalf of the Seller and act as deemed necessary by the Company to collect payments payable from the Buyer.Any and all damages, costs, expenses or fees incurred shall be borne by the Seller. However, the Company is not responsible for making payment to the Seller nor for bringing any legal actions on behalf of the Seller. The Company will discuss with the Seller to adopt appropriate actions to claim auction payments from the Buyer.
d. Counterfeits
If the Buyer convinces or make the Company doubt that the Lot is a counterfeit (as defined in Article 1 of the Transaction Agreement) or stolen good or involved in any illegality within ten (10) days after the Buyer settles all payments and collects the Lot from the Company, the Company will return the hammer price (The Company may deduct the reasonable expenses and fees incurred) received from the Buyer and the Lot will be returned to the Seller or forwarded to the Police for handling. The Seller shall not object to the Company’s decision and handling in accordance with this Lot and make any claim or allegation. The Company will notify the Seller of such matter and the Seller shall return to the Company without objection the entire payment received within three (3) days of such notification, and shall pay the Company fees and expenses, and any and all losses, damages or related expenses and fees. In case that the Seller’s failure of payment and compensation obligations, the Seller shall pay the interest for delay of the entire payment by the best saving rate of the Hong Kong and Shanghai Banking Corporation (HSBC)plus ten percent (10%) per annum.
In addition, the Company may collect one percent (1%) of the total amount of the hammer price plus the Buyer’s Premium paid by the Buyer as the compensations for breach of contract. The Company may decide to offset the Seller’s payment payable to the Company from the Company’s or other subsidiaries’payments due to the Seller in other transactions.
e. Items Not Successfully Auctioned
(1)Any items not successfully auctioned, not included in the auction or withdrawn from the auction for any reason must be collected by the Seller within 35 days upon notification by the Company to the Seller that he must reclaim the Lot.
(2)A storage fee of HK$300 per day per piece will be imposed on each item not collected after such 35 day period together with an additional charge for purchasing insurance coverage. The Seller may not reclaim such item until all the payments due are made.
(3)Such items may be removed to a third party warehouse if not collected in 60 days after the notification of collection is issued. The expenses arising therefrom shall be borne by the Seller.
(4)The Company may dispose of the Lot in the manner it deems appropriate if such item is not collected within 90 days following the auction date or the notice date (whichever is the earlier). Such disposal includes removing the item to a third party warehouse with the associated expenses borne by the Seller and to auction such items under terms deemed appropriate by the Company (including the terms of estimates and the ReservePrice). The Company will pay the Seller the auction proceeds after payments owed are offset.
(5)The Company is authorized to act as the sole agent of the Seller within 2 months following the auction for any auction item withdrawn from the auction or not sold. The Company may auction in private the item based on the net amount the Seller may receive (the amount after deducting all the expenses payable by the Seller) or sell such item in private at a lower price agreed upon by the Company and the Seller. The Company has the rights to offset all expenses payable by the Seller in advance. Under such circumstances, the Seller's responsibilities and liabilities to the Company are the same as during an auction.
9. Photographs and Display
The Seller agrees the Company have rights to make the photographs, illustration, recordings and other reproduced images of the Lot. The Company owns all rights to the photographs, illustration,recordings and other reproduced images of the Lot made by the Company. All the rights(including but without limitation the copyright) of such images shall belong to the Company and the company is entitled to use such images in any manner it deems appropriate,and the Seller has no objection.
10. Taxes
a. According to the tax laws of Hong Kong, The Company shall submit to the competent revenue agency the name of the Seller and other relevant documents supplied by the Seller.
b. If the Seller is a Hong Kong resident (corporation or individual), according to the tax laws of Hong Kong, no withholding amount of the profit tax will be deducted. However, The Company shall reserve the rights to claim for the tax amount and other related expenses (including but not limited to interests, penalty) from the Seller if the representation made or document provided by the Seller is not true.
c. Where the Seller is a foreigner, the Seller agrees that The Company may deduct an amount equivalent to 0.5% of the hammer price or the Reserve Price (if the Reserve Price is higher than hammer price) and submit the deducted amount as Profits tax to the competent revenue agency. The amount to be withheld by The Company shall be subject to change once the applicable tax rate is adjusted.
Article 4.Terms Applicable to Both the Buyer and the Seller
1. Intellectual Property Rights
Intellectual property rights (including but without limitations, the copyright or patent) of all the images, photographs and written material in connection with the Lot shall maintain and belong to the Company at any time. The Buyer or any person may not use such items without obtaining prior written consent from the Company.
2. Notices
All the notices distributed according to the Transaction Agreement herein shall be made in writing. Any notice shall be deemed served to the recipient on the second day following delivery if sent by mail. If the recipient is abroad, the notice shall be deemed served on the fifth working day following delivery by mail.
3. Severability
(1)If any part of the Transaction Agreement is deemed invalid, illegal or unenforceable by any court, such part can be ignored and the rest of the Transaction Agreement continues to be valid and enforceable to the maximum extent permitted by the law.
(2) The conditions of the Buyer under Article 2 exclusively apply to the relationship between the Company and the Buyer, which the Seller shall not apply. And the conditions of the Seller under Article 3 exclusively apply to the relationship between the Company and the Seller, which the Buyer shall not apply.
4. This Agreement is entered into the parties in English and Chinese. If there is any conflict with two versions, the Chinese version shall prevail.
5. This Agreement may be revised or modified by the Company from time to time, and the Prospective Buyer, the Buyer andthe Seller agree to obey the revision or modification.
6. Jurisdiction
The Transaction Agreement is governed under the Hong Kong laws and the interpretation and effect of the Rules shall be subject to the laws of Hong Kong. The Buyer and Seller shall submit themselves to the exclusive jurisdiction of the Hong Kong courts for the interests of the Company.