The following are the terms and conditions (the "Terms") under which you (a "User") may use the web sites and co-branded web sites of Marchance Auctioneers Limited. (the "Company") at www.marchance-auctioneers.com and/or any other addresses (any or all of which are herein referred to as the "Web Site"). Please read this page carefully. By accessing and using the Web Site, you accept and agree to be bound, without modification, limitation or qualification, by the Terms. The Company may, at its sole discretion, modify or revise the Terms at any time by updating the text of this page. You are bound by any such modification or revision and should therefore visit this page periodically to review the Terms.
Specific rules, in addition to these Terms, are provided with respect to transactions conducted on or in connection with the Web Site, and other rules may be provided for the use of certain other items, areas or services provided on or in connection with the Web Site, and you agree to be bound by such rules.
YOUR USE OF THE WEB SITE CONSTITUTES YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN OR OTHERWISE POSTED ON THE WEB SITE. (THE CONTENT OF SUCH AGREEMENT, INCLUSIVE OF THE TERMS AND ALL SUCH ADDITIONAL CONDITIONS AND NOTICES, ARE TOGETHER REFERRED TO HEREIN AS THE "AGREEMENT.") IF YOU DO NOT ACCEPT ANY OF THE PROVISIONS OF THE AGREEMENT, DO NOT USE THE WEB SITE.
Section 1. The Material on the Web Site
WARNING: The content of the Web Site is not intended for minors. Such content extends to a wide range of art and antiquities, is generally uncensored, and may include nudity or other graphic or literary content that some people may consider offensive, as well as access to live or electronic bidding on articles such as firearms and alcoholic beverages that may be harmful and/or illegal in the hands of minors and children and/or inappropriate for them to view or have access to. If you allow your child to use your computer, it is your responsibility to determine whether any of the services, content and subject matter displayed on the Web Site is inappropriate for your child, and to control the child's use of the computer accordingly. If you yourself find offensive content of the type referred to above, you should not use the Web Site.
The contents of the Web Site, such as text, graphics, images, audio, video, data, coding, scripts, computer programs and other material ("Material" or "Materials"), are protected by copyright under the laws of Hong Kong, and are owned or controlled by the Company or by third parties that have licensed their Material to the Company. The Company authorizes you to view and download a single copy of the Material solely for your personal, non-commercial use, or in the case of dealers, to display to your clients solely for purposes of facilitating a transaction with the Company. The use of any software that is made available for downloading from the Web Site ("Software") is governed by the terms of the software license agreement accompanying such software (the "License Agreement"), and is conditioned on your agreement to be bound by the terms of the License Agreement. All rights in and to the Material not expressly granted to you in the Agreement are reserved. Neither the availability of, nor anything contained within the Web Site shall be construed as conferring any license under any of the Company's or any third party's intellectual property rights, other or further than as expressly provided in the foregoing provisions of this paragraph, whether by implication, estoppel or otherwise.
Unauthorized use of the Material may violate copyright, trademark, and other laws. You may not sell, prepare derivative works based on or modify the Material (including, without limitation, preparation of summaries of the Material or "thumbnails" of any images therein), or reproduce, publicly display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose. The use of the Material or any portion thereof on any other web site, or in any publication, database, catalog or compilation, or in a networked computer environment for any purpose other than personal browsing of the Web Site without the express prior written permission of the Company is strictly prohibited. With respect to any copy you make of the Material within the scope of the limited personal license granted herein, you must retain therein, unmodified and unobscured, any and all copyright and other proprietary notices contained in the original Material. Some of the Material may contain digital "watermarks" to indicate their source and ownership. You agree not to attempt to remove, deactivate, reverse engineer, modify, tamper with or obscure any such watermarks. The trademarks, logos and service marks (the "Marks") displayed on the Web Site are owned by the Company or third parties. You are prohibited from using the Marks without the express, prior written permission of the Company or such third party. If you would like information about obtaining the Company's permission to use the Material on your web site, please email email@example.com
The Company reserves the right to employ robot exclusion headers and similar mechanisms within the Web Site, and you agree that you and all persons and facilities under your control will honor such headers and mechanisms. Regardless of the presence or absence of any such headers or mechanisms, and without limiting the generality of any other restriction on use of the Web Site or the Material set forth in this Agreement, you will not in any event use any robot, spider, or other automatic or manual device or process for the purpose of compiling information regarding the identification, address or other attributes of any of our Users, bidders or sellers, or to recreate in original or modified form any substantial portion of the Web Site. You further agree not to use any device, software or routine to interfere or attempt to interfere with the proper functioning of the Web Site or any transactions being conducted on or in connection with the Web Sites. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our servers or systems.
If you violate any provision of the Agreement, your permission to use the Material and the Web Site automatically terminate and you must immediately destroy any copies you have made of the Material.
The Company respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Company's Copyright Agent the following information:
• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest
• a description of the copyrighted work that you claim has been infringed
• a description of where the Material that you claim is infringing is located on the site
• your address, telephone number, and e-mail address
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law
• a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf
Section 2. Privacy; User Submissions
The Company may provide certain areas of the Web Site (such as chat rooms, message boards or other facilities) designated as open to public access or to our Users at large (each of which is referred to herein as a "Public Area"). Generally, any communication that you post to a Public Area is considered to be non-confidential.
By posting communications (including any graphic or multimedia content) to any Public Area, you automatically grant the Company a royalty-free, perpetual, irrevocable non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, publicly perform, and publicly display the communication and any trademarks, names or likenesses therein alone or as part of compilations or other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. (Provisions conferring similar rights on the Company may apply under separate terms or agreements with respect to certain matter submitted other than in Public Areas; you should check the applicable agreements or terms provided by the Company in order to ascertain your rights.)
The Company does not screen communications in advance and is not responsible for screening or monitoring material posted by Users. As a User, you are responsible for your own communications and are responsible for the consequences of their posting. You must not do any of the following things while accessing or using the Web Site or using the Material: (1) post or transmit any material unless you are the owner of all patent, trademark, copyright, trade secret or other proprietary rights ("Rights") therein, or have the permission of the owner of the Rights to post or transmit such material to the Web Site; (2) post material that otherwise violates any Rights of any third party or violates or infringes on the privacy or publicity rights of third parties; (3) post material that is obscene, defamatory, threatening, harassing, abusive, hateful, embarrassing or otherwise objectionable to another User or any other person or entity; (4) post sexually-explicit language or images; (5) post advertisements or solicitations of business; (6) post or transmit any chain letters or pyramid schemes; (7) impersonate another person or entity; (8) intentionally or unintentionally violate any applicable local, state, national or international law while using or accessing the Web Site or the Material; or (9) post or transmit any information containing a virus or other harmful component.
If notified by a User of communications that allegedly do not conform to any term of this Agreement, the Company may investigate the allegation and determine in its sole discretion whether to remove or request the removal of the communication. The Company has no liability or responsibility to Users for performance or non-performance of such activities. The Company reserves the right, in its sole discretion, to expel Users and prevent their further access to the Web Site for violating this Agreement or the law. The Company also reserves the right at all times to disclose any information as necessary or deemed desirable by the Company to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in the Company's sole discretion.
THE COMPANY DOES NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY COMMUNICATIONS POSTED BY OTHER USERS OR ENDORSE ANY OPINIONS EXPRESSED BY USERS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON MATERIAL POSTED BY OTHER USERS WILL BE AT YOUR OWN RISK.
Section 3. Registration, Passwords and Signatures
In consideration of your use of the Web Site, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by any registration form that you may fill out on any Web Site (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or the Company has grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Web Site (or any portion thereof).
You may receive a password and/or account designation, or a digital signature upon completing the registration process on the Company's Web Site. You are responsible for maintaining the confidentiality of any such password, digital signature and account, and are fully responsible for all activities that occur under your password, digital signature or account. You agree to (a) immediately notify the Company of any unauthorized use of your password, digital signature or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Section 4. Use of the Auction or Commerce Portions of the Web Site
The auction or commerce portions of the Web Site are available only to clients of the Company. This excludes in all cases minors (persons who have not reached their eighteenth birthday).
Section 5. Links to Other Sites
The Web Site may contain links to third-party web sites that are maintained by others. These links are provided solely as a convenience to you and not as an endorsement by the Company of the contents of such third-party web sites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party web sites. If you decide to access linked third-party web sites, you do so at your own risk.
Section 6. Liability Disclaimers
The Material may contain inaccuracies or typographical errors. Except as may be separately specifically provided with respect to a particular sale, the Company makes no representations about the accuracy, reliability, completeness, or timeliness of the Material or about the results to be obtained from using the Web Site and the Material. Any use of the Web Site and the Material is at your own risk. Advice received via the Web Site should not be relied upon for personal, medical, legal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation. Changes are periodically made to the Web Site and may be made at any time. Some Material on the Web Site is provided by third parties and the Company shall not be held responsible for any such Material provided by third parties.
You acknowledge and agree that, in the event that there are discrepancies or differences between the descriptions of property provided on the Web Site, on the one hand, and the saleroom catalogue or saleroom addenda and announcements related to such property, on the other, the latter will in all events be considered to be authoritative and controlling.
THE COMPANY DOES NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR-FREE, CONTINUOUSLY OR WITHOUT INTERRUPTION, OR THAT THE WEB SITE OR ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT. IF YOUR USE OF THE WEB SITE OR THE MATERIAL RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE AND MATERIAL ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. THE COMPANY AND ITS SUPPLIERS MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE TEXT, GRAPHICS, AND LINKS. SOME STATES/JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY DEPENDING ON YOUR STATE/JURISDICTION.
Section 7. Disclaimers of Certain Damages
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEB SITE, OR WITH ANY PROVISION OF THE AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEB SITE. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO ANY USER OR ANY THIRD PARTY ON ACCOUNT OF THAT USER'S USE OF THE WEB SITE. IN NO EVENT SHALL THE COMPANY AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY SUCH THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE WEB SITE, THE DELAY OR INABILITY TO USE THE WEB SITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Section 8. Indemnity
You agree to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any losses, liabilities, damages, costs, and expenses, including, without limitation, reasonable legal, expert and accounting fees, incurred in connection with any claims, actions or demands alleging or resulting from your use of the Material (including Software), your breach of this Agreement, or your violation of law or of the rights of any third party. The Company shall provide notice to you promptly of any such claim, suit, or proceeding and, if it is one asserted by a third party, shall provide reasonable assistance to you, at your expense, in defending any such claim, suit or proceeding.
Section 9. Export Control of Software and Technical Data
The following applies with respect to Software and other Material of a technical nature that you may obtain from the Web Site (other requirements set forth in Section 10 below may apply with respect to items offered for sale, purchased or sold): Hong Kong controls the export of such items. You agree to comply with such restrictions and not to export or re-export the Material (including Software) to countries or persons prohibited under the export control laws. By downloading the Material (including Software), you are agreeing that you are not in a country where such export is prohibited and that you are not on the Hong Kong Commerce Department's Table of Denial Orders or the Hong Kong Treasury Department's list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Software and/or other Material.
Section 10. Import and Export Regulations Regarding Tangible Property
Hong Kong and most foreign countries regulate the importation and exportation of tangible property. Many countries require a declaration of export for property that is leaving the country. Additionally, most countries require an Import Declaration at the time of customs clearance of property into that country. Upon import, these countries may impose duties, other taxes and/or restrictions on the property. Many countries also prohibit or restrict importation or exportation of property containing ivory, tortoiseshell, whalebone, and/or products derived from other endangered or protected species, and require special licenses or permits in order to import or export such property. Other countries regulate movement of antiquities and cultural items, which in some cases are subject to a right of pre-emption or compulsory purchase by the country from which they are to be exported. It is the responsibility of the seller to ensure that the item is properly and lawfully exported from the country in which it is located. It is the responsibility of the buyer to ensure that the property is properly imported into the buyer's country. If you participate in the auction or commerce portions of the Web site, and, as a result, purchase property that you plan to ship to another country, you agree that you are responsible for familiarizing yourself with and complying with any and all applicable rules and regulations.
THE COMPANY MAKE NO REPRESENTATION OR WARRANTY AND ACCEPTS NO LIABILITY WHATSOEVER TO THE SELLER, THE BUYER, OR ANY THIRD PARTY IN RESPECT OF THE AVAILABILITY OR ISSUANCE OF VALID IMPORT AND EXPORT PERMITS OR THE EXISTENCE OR EXERCISE OF PRE-EMPTION OR OTHER RIGHTS TO PURCHASE BY GOVERNMENTAL OR REGULATORY AUTHORITIES ANYWHERE.
Section 11. General
The Company makes no claim that the Materials are appropriate for any particular purpose or audience, or that they may be downloaded outside of Hong Kong. Access to the Materials (including Software) may not be legal by certain persons or in certain countries. If you access the Web Site from outside of Hong Kong, you are responsible for compliance with the laws of your jurisdiction.
The Web Site is based in Hong Kong. All legal issues arising from or related to the use of the Web Site shall be construed in accordance with and determined by the laws Hong Hong applicable to contracts entered into and performed within Hong Kong without respect to its conflict of laws principles. By using the Web Site, you agree that the exclusive forums for any claims or causes of action arising out of your use of the Web Site shall be the courts for or within Hong Kong. You hereby irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Web Site must be filed within one (1) year after such claim or cause of action arose or be forever barred. This Agreement constitutes the entire Agreement between you and the Company with respect to the use of the Web Site. Any changes to this Agreement must be made in writing, signed by an authorized representative of the Company.
Part 1 General
Section 1 Jurisdiction
These Conditions of Business (hereinafter referred to as the "Conditions") are formulated in accordance with the relevant laws, decrees, rules and regulations of the Hong Kong Special Administrative Region and the provisions of the Auction Articles of Marchance Auctioneers Limited (hereinafter referred to as "Marchance") and in light of international practice.
All parties participating in any auctions organized by the Company, including the Seller, the Bidder, the Buyer and all other related parties (including but not limited to the agents of the Seller, the Bidder and the Buyer) shall be deemed to accept in full and bound by these Conditions of Business, and shall comply with them in such auctions, enjoy the rights and perform the obligations provided herein.
Any Bidder who bids in an auction organized by the Company, whether in person or by authorizing an agent to bid on his/her/its behalf, whether by raising the paddle, by absentee bids, by phone or by any other means, shall be deemed to have accepted these Conditions of Business in full.
Any dispute among the parties to auctions organized by the Company shall be settled in accordance with these Conditions of Business.
Section 2 Declaration
1. Unless as otherwise stated, we act as the Seller’s agent. The closing agreement for sale of a Lot shall be a contract between the Seller and the Buyer. These Conditions of Business and all other terms, conditions and notices contained in the catalogue, announced by the Auctioneer or provided at the saleroom shall constitute the provisions agreed among the Seller, the Buyer and/or the Company as auction agent.
2. The Company may amend these Conditions of Business for a particular auction by posting announcements at the auction site or making an announcement at such auction through an Auctioneer.
3. Bidders and Buyers participating in any auctions organized by the Company shall carefully read and be abided by these Conditions of Business; Bidders and Buyers shall read the provisions limiting the Company’s liabilities and disclaimers contained in these Conditions of Business carefully. Bidders and/or their agents have the responsibilities to review the original Lot in person, and bear legal liabilities for their acts of bidding the Lot.
4. Upon the Auctioneer confirms the Bidder’s bid by striking his/her hammer or in any other manner publicly indicating confirmation of the purchase in any auctions organized by the Company, the contract for sale regarding the Lot shall immediately enter into force and the Bidder shall become the Buyer of the Lot. The Company, the Seller and the Buyer shall acknowledge the sale of the Lot and its closing, enjoy the rights and assume the obligations provided by applicable laws and/or these Conditions of Business. Any party that fails to perform obligations shall bear his/her/its corresponding legal liabilities.
5. We, acting as agent of the Seller, shall undertake no liability for any breach of contract by the Buyer or the Seller.
In case of the breach of contract by the Seller or the Buyer, the Company shall have the right to decide to disclose the other party’s name and address to the Seller or the Buyer at its own discretion so that the damaged party may receive compensation for damages through legal proceedings. However, prior to the Company’s disclosure of such materials to the Seller or the Buyer, the Company shall take the reasonable steps to notify the party whose materials are to be disclosed.
6. If any abnormal event occurs at the auction site, the Company has the right to take emergency actions. If any dispute arises at the auction site, the Company has right to mediate and settle it.
Section 3 Definitions and Interpretation
1. “We/Us/Company” means Marchance Auctioneers Limited;
2. “Auction Date” means, in an auction held by the Company, the date on which the auctioneer concludes a contract for sale between a Seller and a Buyer by way of hammer striking or any other customary manner publicly confirming the sale;
3. “Auctioneer” means any person designated by the Company to moderate a particular auction;
4. “Bidder” means any person, company, body corporate or other organization who or which has duly completed the necessary registration formalities with our Company and acquired the right to bid; In these Conditions of Business, a Bidder shall include any of its agents unless as otherwise specified herein or required in a particular context;
5. “Buyer” means the Bidder whose bid or offer for a Lot is recognized by an Auctioneer as the highest bid for that Lot in an auction held by the Company, including the principal on behalf of which such Bidder acts;
6. “Seller” means any person, company, body corporate or other or organization that consigns (a) Lot(s) within the scope of these Conditions of Business to the Company for auction. In these Conditions of Business, a Seller shall include any of its agents unless as otherwise specified herein or required in a particular context;
7. “Lot” means any item consigned by a Seller to the Company for auction and so auctioned in any auction, in particular, any item numbered in any catalogue with certain description;
8. “Estimate” means the estimated selling price of a Lot written in the catalogue or other descriptive materials, excluding the Buyer’s Commission;
9. “Reserve” means the confidential minimum selling price for the Lot that the Seller has confirmed with the Company;
10. “Hammer Price” means the price for a Lot at which the Auctioneer decides to sell the Lot by striking the hammer or the agreed sale price in the post-auction sale;
11. “Proceeds of Sale” means the net amount due to the Seller, being the Hammer Price less the Buyer’s Commission, all expenses and other amounts payable to the Company by the Seller;
12. “Buyer’s Commission” means any commission that a Buyer shall pay to the Company calculated at the rate specified herein of the Hammer Price for the Lot that such Buyer purchases;
13. “Purchase Price” means the total amount payable by the Buyer for his/her/its purchase for each Lot, including the Hammer Price, the Buyer’s Commission, other Buyer’s Expenses and all Buyer’s Expenses arising from his/her/its failure to perform his/her/its obligations;
14. “Buyer’s Expenses” means costs and expenses in relation to sale of Lot paid by the Company, including but not limited to insurance policies, packaging, moving, storage, custody for the Lot, any expenses of testing, investigation, queries or authentication related to the Lot at the request of the Buyer or any additional costs and legal expenses to bring claims against a defaulting Buyer;
15. “Storage Fee” means the storage fee payable by the Buyer to the Company according to these Conditions of Business.
16. In these Conditions of Business, where the context requires, words denoting the singular shall include the plural and vice versa.
Part 2 Conditions Applicable to Buyer
Section 4 Bidder and Buyer
1. Every Bidder shall be deemed to act as principal unless Marchance has, before the date of the auction, acknowledged in writing that the Bidder is acting as agent on behalf of a disclosed principal.
2. If the Bidder is a natural person, before making any bid at the auction, he/she shall fill in and sign the registration documents with an identity document with photo issued by the government (such as resident identity card or passport), and provide proof of the current address (e.g. utility bill or bank statement).
3. If the Bidder is a company or other organization, before making any bid at the auction, it shall fill in and sign the registration documents and collect a paddle with its valid certificate of incorporation and proof of shareholding and legitimate authorization document.
4. The Company may request the Bidder to present proof of bank details or other proof of financial conditions for payment purposes.
5. The Company can announce before the Auction Date the conditions and procedures of arranging paddle for the Bidder according to different auction conditions and auction methods etc., including but not limited to the qualification and conditions for the Bidder to arrange a paddle.
6. The Company solemnly reminds that a paddle is the only proof for the Bidder to participate in auction at the venue. The Bidder shall keep it properly. If it is lost, he/she/it shall immediately handle the loss report formalities in a written form recognized by the Company.
All Bidders shall not lend his/her paddle to any other person(s). Otherwise, he/she shall bear all the responsibilities associated with the use of his/her paddle for bidding or any other use. No matter if the person holding a paddle has been appointed by the Bidder or not, his or her bidding acts at auction are considered as having been made by the registered person himself/herself, and the Bidder shall bear the legal responsibilities for the acts of the former, unless the Bidder himself/herself has already submitted a written report to the Company regarding the loss paddle.
7. Marchance has the right, at our complete discretion, to refuse admission to the premises or participation in any auction and to reject any bid.
Section 5 Deposit
All Bidders will be required to place an auction deposit before a numbered paddle can be issued. The amount of deposit to be charged will be announced before the date of auction, and the Company has the right to waive the auction deposit. If the Bidder fails to buy the Lot and he/she does not owe the Company any sum, then that auction deposit shall be returned to the Bidder in full without interest within 10 working days after the end of the auction. If the Bidder succeeds in buying (a) Lot(s) at auction, the deposit will be used to offset the invoice value payable by that Bidder (as buyer) and the balance (if any) will be refunded at collection.
Section 6 Responsibilities of the Bidder and the Company in respect of the Lot
1. In accordance to the matters contained in Section 6.2 to 6.6 of the Conditions of Business and the special exemption contained in Section 7 of the Conditions of Business, the descriptions in the catalogue and in the condition reports are written in a reasonably prudent manner (and such should be in line with those terms of the Conditions of Business regarding the Company serving as Auction Agent) based on
(i) the information provided by the Seller to the Company;
(ii) academic and technical knowledge (if any); and
(iii) generally accepted opinions of the relevant experts.
2. The Company’s perception of all Lots partly relies on the information provided by the Seller, the Company is unable and will not carry out comprehensive inspection of all Lots. Bidders are aware of this and bear the responsibilities of inspecting and testing the original Lots so that Bidders will be satisfied with those Lots in which they may be interested.
3. All Lots for sale by the Company are available for viewing by Bidders. By bidding, Bidders and/or their agents are deemed to have carried out thorough examination of the Lots, and are deemed to be satisfied with the conditions of the Lots and the accuracy of their description.
4. Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All Lots offered for sale in the condition they are in (“as is”) at the time of the auction (whether or not Bidders attend the auction). Condition reports may be available to assist when lot(s) is/are being inspected before auction. Under certain circumstances, catalogue descriptions and condition reports may on occasions make reference to particular imperfections of a lot, but Bidders should note that lots may have other defects not expressly referred to in the catalogue or condition report.
5. Regarding the information about the Lot provided to Bidders, including any forecast information (written or verbal), catalogues and other reports, commentaries or estimated values, such information are not statement of facts, but rather are statements of the opinion that the Company holds. Such information can be altered at the sole discretion of the Company from time to time
6. The Company or the Seller has not made any declaration or warranty as to whether any Lot is subject to any copyright or whether the Buyer has bought the copyright of any Lot.
Section 7 The Company’s Exemption and Restriction of Responsibilities to the Buyer
1. We will not provide any warranty as to the authenticity, value, tone, quality and flaw or defect of any of the Lots. The Bidders or their agents shall verify the authenticity and conditions of the Lots, and be responsible for all his/her bids associated with the auction.
2. Subject to the matters contained in Section 6 of the Conditions of Business and the rules in Section 7.5 of the Conditions of Business, the Company shall not:
(i) be responsible for any errors or omissions in the information provided by the Company to the Bidder verbally or in writing, no matter whether this is caused by negligence or other reasons, with the exception of provision contained in Section 6.1 of the Conditions of Business;
(ii) make any guarantee or warranty to the Bidder, excluding any implied warranty and rules other than the expressed warranty that the Seller has entrusted the Company to make to the Buyer (with the exception of those responsibilities that cannot be discharged according to the stipulations of laws);
(iii) be accountable to any Bidder for any actions or omissions of the Company regarding the auction or the sale of any Lot (no matter whether this is caused by negligence or other reasons).
3. Unless the Company owns the Lot to be sold, it shall not be responsible for any breach of the Conditions of Business by the Seller.
4. Without affecting Section 7.1 and 7.2 of these rules, any claim for compensation that the Bidder makes to the Company or the Seller shall be limited to the Hammer Price and the Buyer’s Commission of the Lot. Under no circumstances shall the Company and the Seller bear any consequential losses incurred by the Buyer.
5. Section 7 of the Conditions of Business does not exempt or restrict the responsibilities of the Company regarding any misrepresentation with fraudulent element made by the Company or the Seller, nor the responsibilities of casualty or death caused by negligent acts or omissions of the Company or the Seller.
Section 8 Catalogue and Lot Descriptions
1. The Company shall prepare a catalogue of the Lot to briefly introduce the conditions of the Lot with words and/or pictures to facilitate the Bidder and Seller to participate in the auction held by the Company. The words and Estimate in the catalogue of the Lot, pictures, other images as well as public materials are only references for the Bidder and may be revised before auction. The Company provides no guarantee for the authenticity, value, tone, quality or flawlessness of the Lot.
2. In case that the tone, color, graduation and shape of the Lot shown in the catalogue and/or any other illustrations, images and public materials differ from those of the original Lot due to printing, photography or other technical reasons, the original Lot shall take precedence. Any introduction and appraisal of any Lot made by the Company and its employees or its agents in any way (including the certificate, catalogue, slide show and news media) are only opinions for reference and do not constitute any guarantee for the Lot. The Company and its employees or its agents shall undertake no liability for any inaccuracy or omission in the aforesaid introduction or appraisal.
3. The Bidder and/or his/her/its agents shall have the responsibility to learn about the actual conditions of the Lot and shall be legally liable for his/her/its bid for a certain Lot. We strongly advise the Bidders to personally inspect the original Lot that they intend to bid by identification or other methods before Auction Date. Bidders shall judge whether the descriptions in the catalogue are accurate rather than relying on the accuracy of our catalogue and other images and advertisements of the Lot.
Section 9 Absentee Bid, Telephone Bid and Online Bidding
1. Prospective Bidders are advised to attend the auction in person. If the Bidder is unable to do so, Marchance may accept the Bidder's written instruction of Absentee Bid or Telephone Bid to bid on their behalf.
2. Bidders shall understand that both Absentee Bid and Telephone Bid are free services provided by Marchance, neither Marchance nor its employees shall be liable to the Bidder for any negligence or default in doing so or for failure to do so.
3. If a Bidder who has appointed the Company to bid, the auction results and the related legal responsibilities shall be borne by the Bidder.
If the Bidder indicates in the Absentee Bid Order that he/she/it bids by instant communication methods such as telephone, it shall fill in the instant communication method accurately and keep the instant communication instrument properly, during the period in which the Company is appointed to bid, the Bidder shall use that instant communication instrument himself/herself/itself. In the case when the instant communication instrument is lost or it cannot be within control, the Bidder shall immediately use a written form recognized by the Company to change the instant communication method filled in the Absentee Bid Order.
During the period the Company is appointed to bid, it shall make appropriate efforts to contact the Bidder, the bidding information transmitted by that instant communication instrument (whether or not it is transmitted by the Bidder personally or the Bidder’s agent) shall be considered as transmitted by the Bidder himself/herself/itself, and the Bidder shall bear legal responsibilities for the actions taken by he/she/it, unless the Bidder himself/herself/itself has changed the instant communication method filled in the Absentee Bid Order by a written method recognized by the Company. Nevertheless, under no circumstances shall the Company be responsible for any unsuccessful contact or errors or omissions in the bidding process using that instant communication instrument.
4. Prospective Bidder shall authorize Marchance to act as his/her agent by submitting the Commission Bid Agreement, duly completed, at least 24 hours before the auction day, and shall pay Marchance a deposit in accordance with the following schedule:
- Total bid at HK$50,000.00 or below deposit at 100%
- Total bid at HK$50,001.00- 200,000.00 deposit at HK$50,000.00
- Total bid at HK$200,001.00 or above deposit at 30%
5. If we receive more than one absentee bid with same bid price for a particular lot, and at auction these bids are the highest bids for the lot, it will be sold to the person whose absentee bid we received first.
6. Marchance has no obligation to accept the Absentee Bid or Telephone Bid application and Marchance’s decision in this regard shall be final. Prospective bidders shall not assume Marchance’s acceptance of his/her pre-registration application unless he/she has received a written confirmation from Marchance to that effect.
7. If prospective bidder would like to cancel the commission, he/she shall notify Marchance in written form no less than 24 hours before the auction day.
8. In the case of successful bid, the result of the bid will be sent by SMS or post after the auction.
9. Online bidding: Marchance offers online bidding service for bidders who cannot attend the sale. In completing the bidder registration online, it is considered that the bidder understands and agrees that any lots purchased via online live auction service will be subject to an additional 3% commission charge at the rate imposed on the hammer price.
Section 10 Images and Screens
At some auctions, there will be a video or other screens in operation for the convenience of Bidders, which is intended for reference only. However, there may be errors or omissions in the figures, numbers, images projected, or foreign exchange rates on the screen. We shall not be liable for any losses and damages caused by such errors or omissions.
Section 11 Reserves and Estimate
1. Unless otherwise indicated, all lots are offered subject to a Reserve, which is the confidential minimum price below which the lot will not be sold.
2. Normally, the Reserve is not higher than the lowest Estimate announced before the auction or published before the auction by the Company.
3. With respect to lots that are offered without reserve, unless there are already competing bids, the auctioneer, in his/her discretion, will generally open the bidding at 50% of the low pre-sale estimate for the lot. In the absence of a bid at that level, the auctioneer will proceed backwards in his/her discretion until a bid is recognised, and then continue up from that amount.
4. Under no circumstances shall the Company bear any liability when the bids for a Lot do not reach the Reserve. If the bids are lower than the Reserve, the Auctioneer, in his or her discretion, may sell the Lot at a price lower than the Reserve. However under such circumstances, the amount that the Company shall pay the Seller shall be the amount that the Seller would receive as if the Lot was sold at the Reserve.
5. The Estimate is estimated at an earlier time before the Auction Date, it is not a confirmed selling price, and is not legally binding. Estimates cannot be used as a forecast of the Hammer Price of the Lot, and the Company has the right to revise the already made Estimate from time to time.
Section 12 Bid Increments
Minimum Value Maximum Value Bid Increment
HK $ 1,999 or below HK $ 100
From HK $ 2,000 To HK $ 4,999 HK $ 200
From HK $ 5,000 To HK $ 9,999 HK $ 500
From HK $ 10,000 To HK $ 19,999 HK $ 1,000
From HK $ 20,000 To HK $ 49,999 HK $ 2,000
From HK $ 50,000 To HK $ 99,999 HK $ 5,000
From HK $ 100,000 To HK $ 199,999 HK $ 10,000
From HK $ 200,000 To HK $ 499,999 HK $ 20,000
From HK $ 500,000 To HK $ 999,999 HK $ 50,000
From HK $ 1,000,000 To HK $ 1,999,999 HK $ 100,000
From HK $ 2,000,000 To HK $ 4,999,999 HK $ 200,000
From HK $ 5,000,000 To HK $ 9,999,999 HK $ 500,000
HK $ 10,000,000 or above HK $ 1,000,000
Section 13 Auctioneer's Discretion
The Auctioneer has the right at his/her absolute and sole discretion in the following matters:
1. Refusal or acceptance of any bid;
2. Carrying out the auction in such a manner as he/she may decide;
3. Withdrawal of any Lot, dividing it for auction separately, combining any two or more Lots for auction;
4. If there are errors or disputes, no matter if they occur during or after the auction, he/she shall have the right to decide the successful Bidder, whether or not to continue the auction, to cancel the auction or place the Lot under dispute for auction again;
5. The Auctioneer may open and carry out the bidding at a level with bidding increments that he/she considers suitable, and has the right to bid on behalf of the Seller up to the amount of the Reserve, either by placing consecutive bids or by placing bids in response to other Bidders;
6. Adoption of other actions that he/she considers as appropriate;
7. The striking of hammer represents the acceptance of the highest bid, at which moment the Buyer shall bear all the obligations associated with the successful bid.
Section 14 Successful Bid
The fact that the Auctioneer confirms the highest bid of a Bidder by striking his/her hammer or in any other manner of publicly confirming the sale shall indicate the conclusion of a sales contract for the Lot between the Bidder and the Seller.
Section 15 Buyer’s Premium and Expenses
The Bidder will be deemed as the Buyer of the Lot after succeeding in bidding and shall pay us the Buyer’s Premium together with any applicable expenses and charges. The Buyer’s Premium is equal to 23% of the Hammer Price of each lot up to and including HK$1,000,000; and 15% of the excess of the hammer price above HK$1,000,000.
Section 16 Payments
1 After the Lot is successfully sold in an auction, the Buyer shall fully pay the Purchase Price within 7 days after the Sale Date (including the Sale Date), and collect the Lot. Otherwise, the Buyer shall be liable for breach of contract.
2 If there is any tax applicable to the Buyer, the Buyer shall bear it himself/herself/itself according to the provisions of the relevant laws currently in force.
3 If packing, moving costs, and insurance expenses, expenses related to export is/are involved, the Buyer shall pay them altogether.
4 All payments shall be made in Hong Kong Dollars. If the Buyer make payments in currency other than the designated one, the currency shall be converted at the rate agreed upon by the Buyer and us or at the rate announced by Bank of China (Hong Kong) Limited one business day prior to the payment. We shall charge the Buyer for any conversion costs or bank charges incurred.
5 Our company will issue an invoice of property sold under the name and address on the Bidding Paddle Registration Form and the registered name and address should not be changed.
6 Our company does not accept payment from a third party other than the Buyer. This applies to the agent as well. If the agent participates in the auction on behalf of others, we only accept payment from the principal. Other than accepting payment from the Buyer, our company reserves the right to reject payments from other sources.
7 Payment Methods
(i) By Cash or Cashier Order
If payment is made by cash or cashier order, the purchases will be released immediately. However, our company does not accept sums exceeding HK$80,000 (or its equivalent in other currencies) in cash in a single or multiple payments.
(ii) By Cheque
Payable to "Marchance Auctioneers Limited"
Please be reminded that the purchases will not be released until such cheques have been cleared. Traveler’s cheques are not accepted.
(iii) By Bank Transfer
Please include your name and paddle number or invoice number with your instructions to the bank.
Account Name: Marchance Auctioneers Limited
Bank: The Hong Kong and Shanghai Banking Corporation
Account No.: 004-652-209198-001
(iv) By UnionPay or EPS
Our company accepts payments by UnionPay or EPS and no extra fees will be charged. If refund is necessary, the fee(s) charged by UnionPay or EPS shall be bear by the payer.
Section 17 Collecting, Packing, Shipping and Exporting of Lots
1 The Buyer shall collect the purchased lot no later than seven days after the Sale Date (including the Sale Date). Otherwise, whether or not payments have been made, the Company has the right to adopt one or more measures below:
(i) We shall be permitted to remove the property to a third party warehouse. All costs (including but not limited to the storage fee calculated and charged according to the provisions of the Bidder Registration Order starting from the 31st day from the Sale Date (including the Sale Date) and/or risks for the taking out of an insurance policy and/or storing the Lot in the Company or other places shall be borne by the Buyer. Only after the Buyer has paid the full amount of the Purchase Price, he/she/it can collect the Lot (packing and moving costs, insurance expenses, expenses related to export shall be at the Buyer’s expense);
(ii) If the Buyer has not yet collected the Lot within 30 days from the Sale Date (including the Sale Date), after notifying the Buyer, the Company has the right to sell that Lot in a public auction or by a method and with methods and conditions that it considers suitable. Any proceeds after the deduction of all the losses, expenses (packing & moving costs, insurance costs, expenses related to export, Storage Fee, and notarial expenses etc.) incurred by the Company from the disposal shall be collected by the Buyer; such balance is non-interest-bearing. If the Buyer fails to collect the proceeds back two years after the Sale Date, the balance shall be deposited to a Hong Kong court by the Company after deducting the relevant expenses (including legal fees).
2 Where Properties are not collected within 30 calendar days (including the day of sale) from the day of sale, the Buyer must pay the monthly storage fee of HK$800 per lot starting from the 31st day. For storage of less than one month, one whole month's storage fee will be charged. All other additional expenses such as insurance, packing & transport costs will be charged separately.
3 The Buyer shall bear all the risks and expenses incurred after the deadline as stated in the Conditions of Business if he/she/it cannot collect the Lot concerned within that deadline. Even though the lot is still under our or any of our agent's custody, neither we nor our agents shall be liable for any losses or damages incurred regardless of the reasons.
4 We may arrange packing and handling of the purchased Lot on behalf of the Buyer upon his/her/its request. This is considered as a service provided by the Company to the Buyer and the Company has the discretion to decide whether to provide this service, if any losses arise there from, the Buyer shall bear them himself/herself/itself.
5 Where the Buyer requests the Company to assist in collecting the purchased Lot (the packaging, mailing and transportation expenses shall be paid by the Buyer) by means of post, express delivery or transportation, the Company shall be deemed to have delivered the Lot and the Buyer shall be deemed to have collected such Lot according to the normal procedure upon the Company’s delivery of the Lot to the post, express delivery and transportation entities, companies or their employees/branch offices. The risks arising from this process shall be borne by the Buyer. Unless as Buyer gives a clear indication and pays insurance premium, no insurance is provided in the process of mailing, express delivery or transportation generally. The Company shall undertake no liability for any error, omission, damage or destruction caused by the packaging company and post, express delivery and transportation entities or companies designated by the Buyer or recommended by the Company to the Buyer.
6 Under no circumstances shall the Company be responsible for any damage of the glass or picture frame, box, backing sheet, frame case, mounting, inserts, rolling rod or similar auxiliary objects caused by any reasons.
7 For items made of botanic or animal materials (coral, crocodile, ivory, whale bone, tortoise, rhinoceros horn and Brazilian Rosewood, etc.) or containing botanic or animal materials, regardless of their year or value, may require application for permits or certificates before exporting outside Hong Kong, and other application for permits or certificates may be required when importing into countries outside Hong Kong. Please pay attention that the ability to obtain export permits or certificates does not ensure that import permits or certificates can be obtained in another country, and vice versa. For example, importing ivory of less than 100 years is illegal in the USA. Bidders should enquire about the import regulations on products made of or containing botanic or animal materials of the governments concerned before participating in an auction.
The Buyer shall be responsible for obtaining any import and export licenses, permit for endangered animals or other aspects related to the Lot. Failure or delay in obtaining any permits required shall not be deemed as a reason for cancelling the purchase or delaying in paying the Purchase Price. The Company shall not bear any responsibilities for the failure to properly fill in or submit the required import or export documents.
If the Buyer requests the Company to apply for the import and export licenses on his/her/its behalf, the Company has the right to charge service fees for this service. However, the Company does not warrant that the import or export license will be issued. The Company and the Seller has not made declaration or warranty in respect of whether or not any Lot is subject to import and export restrictions or any embargo.
Section 18 Remedies for non-payment
If the Buyer fails to make full payment according to the provisions of the Conditions of Business or any payment arrangements agreed with the Company, the Company has the right to adopt one or more of the following measures:
1 After the Lot is sold, if the Buyer fails to pay the Purchase Price within 7 days from the Sale Date (including the Sale Date), the auction deposit paid at the time of bidding registration shall not be refunded, and it shall at the same time bear the relevant responsibilities according the provisions of the Conditions of Business; if the Buyer has bought a few Lots with the same paddle, after the Lots are sold, if the Buyer has not paid the Purchase Price of any of the Lots within the time stipulated, then the entire auction deposit shall not be refunded, and it shall at the same time bear the relevant responsibilities according the provisions of the Conditions of Business;
2 If the Buyer fails to pay the Purchase Prices in full to the Company within 7 days from the Sale Date (including the Sale Date), the Company has the right to appoint a third party organization to collect the entire or part of the Purchase Prices that the Buyer owes;
3 If the Buyer fails to pay the Purchase Price in full within 7 days from the Sale Date (including the Sale Date), the Company has the right to charge interest at 0.03% per day on the unpaid portion starting from the 8th day after the Sale Date until the day on which the Buyer has fully paid the monies, with the exception that the Buyer has otherwise agreed with the Company;
4 The Buyer shall bear the risks and expenses of taking out an insurance policy, moving and storing the Lot in the Company or other places;
5 To sue the Buyer, demand for compensation for all the losses due to the breach of contract by the Buyer including the interest loss caused by the delay in payment or refusal to make payments by the Buyer;
6 To retain that or any other Lot that the same Buyer has bought via the Company, and any other properties or rights to property of the Buyer that the Company holds for any reasons, all the expenses and/or risks incurred during the retention period shall be borne by the Buyer. If the Buyer fails to perform all his/her/its duties concerned within the period specified by the Company, the Company has the right to issue a lien notice to the Buyer and dispose of the items under lien if the Buyer has not yet fully paid all outstanding amounts within 30 days after the issue of that notice. If the items under lien are insufficient to offset all the monies payable by the Buyer to the Company, the Company has the right to claim them;
7 The Company has sole discretion to cancel the sale or agree that the Consignor can cancel the deal, and reserve the right to claim all the losses suffered by the Company due to the cancellation of that deal;
8 The Company can place the Lot for auction again or sell it by other means according to the provisions of the Conditions of Business with the consent of the Seller, and the Company reserves the right to decide the Estimate and Reserve. The original Buyer shall pay the commission and other Buyer’s Expenses and the Seller in the first auction, and he/she/it shall bear all the costs of the second auction or the sale of the Lot by other means. If the price obtained from the second auction or the sale of the Lot by other means is lower than the original auction sum, the original Buyer shall pay the shortfall;
9 To offset any monies related to the Lot that the Buyer owes the Company by any sums that the Company owes the Buyer in any other transactions;
10 The Company can decide to use any monies paid by the Buyer to repay any sums that the Buyer owes the Company in any other transactions;
11 To reject any bids made by the Buyer or his/her/its agent in future auctions, or to obtain auction deposit before accepting any bids;
12 To disclose the information of the Buyer to the Seller, so that the Seller can start a law suit to recover the outstanding amount, or claim damages and claim legal fees for the breach of contract by the Buyer.
Section 19 Transfer of Ownership
The Buyer will acquire ownership of the Lot after payment of the Purchase Price in full. Even if the Company has delivered the Lot to the Buyer, the Buyer has not yet obtained the ownership of the Lot. This shall pass onto the Buyer only when the Buyer has fully paid the Purchase Price and all monies that the Buyer owes the Company.
Section 20 Transfer of Risks
After a successful bid, any Lot purchased shall be entirely at Buyer's risk as soon as one of the following occurs:
(i) The Buyer collects the Lot purchased;
(ii) The Buyer pays us full Purchase Price for the Lot;
(iii) The expiry of seven days after the Sale Date (including the Sale Date).
Part 3 Conditions Applicable to Seller
Section 21 Consignment Procedures
1 When arranging the consignment of the Seller’s Lot to the Company for auction:
(i) The Seller must present a valid identity document with photo issued by the government (e.g. resident identity card or passport) if the Seller is a natural person, and sign a consignment auction contract with the Company;
(ii) A valid certificate of incorporation, proof of shareholding, or a legal authorization document shall be required if the Seller is a legal entity or any other organization, which shall sign a consignment auction contract with the Company;
2 When arranging the consignment of the Lot to the Company for auction, the Seller’s agent shall submit to the Company the relevant authorization certificates including:
(i) A valid identity document if such agent is a natural person;
(ii) A valid certificate of incorporation and proof of shareholding if such agent is a legal person or any other organization; and
(iii) A power of attorney duly executed.
The Company has the right to examine the aforesaid documents in a lawful manner.
3 When the Seller or Seller’s agent signs a consignment auction contract with the Company, the Company shall be automatically authorized to make pictures, illustrations, catalogues, or other video images of the Lot.
Section 22 The Seller's Warranties
The Seller hereby makes irrevocable warranties to the Company and the Buyer with respect to the Lot he/she/it consigns to the Company for auction as follows:
(i) The Seller has absolute ownership or legal right to dispose the Lot. The auction of the Lot will not prejudice any legal interest (including copyright interest) of any third party, and will not violate the provisions of relevant laws and regulations;
(ii) The Seller has, to the best of his/her/its knowledge, made full and complete disclosure and description to the Company with respect to the origin and any flaw of the Lot and notified the Company in writing, without any concealment or fabrication;
(iii) If the Lot being consigned shall be imported into Hong Kong, the Seller shall guarantee the compliance with the laws of its origin, and ensure the completion of the export and import procedures and notify the Company in writing; and
(iv) If the violation of the above warranties causes the actual owner of the Lot or any third party who claims to have right to bring any claim or action and causes the Company and/or the Buyer to suffer losses, the Seller shall compensate for all losses suffered by the Company and/or the Buyer as well as all expenses and costs incurred as a result.
Section 23 Insurance
1 Unless as otherwise instructed by the Seller in writing, all Lots will be automatically covered under the insurance policies purchased by the Company after the Seller enters into the consignment auction contract with the Company and delivers the Lots to the Company. The insured amount shall be based on the Reserve agreed by the Seller and the Company in the consignment auction contract (if there is no Reserve, it shall be the agreed insured amount of the Lot; if the Reserve is adjusted, it shall be the original Reserve of the Lot). The insured amount is only applicable to insurance and claim for compensation, it is not the Company’s warranty or guarantee for the value of the Lot, and does not mean that the Lot can be sold for an amount equal to the insured amount through any auction by the Company.
2 If the Lot is sold in the auction, the insurance period shall terminate at the earlier of the expiry of the seventh day after the Sale Date (including the Sale Date) and the date when the Buyer collects the Lot. If the Lot is not sold in the auction, the insurance period shall terminate upon the expiry of thirty days after the Company issues the notice on the collection of the Lot.
3 If the Lot is sold, the insurance premium payable by the Seller shall be 1% of the Hammer Price unless as otherwise agreed by the Seller and the Company. If the Lot is not sold, the Seller shall as well pay the insurance premium at 1% of the Reserve.
4 In the event that the Seller notifies the Company in writing not to insure the Lot, he/she/it shall undertake all the risks and the following liabilities at any time (unless as otherwise ruled by an arbitration institution):
(i) To compensate for any claim or action brought by any other parties against the Company with respect to the damage or destruction of the Lot;
(ii) To compensate the Company and/or any other parties for all losses suffered and all expenses incurred because of the damage or destruction of the Lot caused by any reason; and
(iii) To notify the compensation related provisions herein to any insurer of the Lot.
5 Any damage or destruction of the Lot caused by incidents or disasters covered by the insurance purchased by the Company for the Lot shall be handled in accordance with the policies and regulations of the insurance company concerned. The Company shall pay insurance indemnities after deducting the Company’s expenses (other than the Commission) to the Seller after the Company obtains such indemnities from the insurance company.
6 During the period in which we assume the risks of the Lot, we shall be liable for any loss thereupon for up to 100% of the Reserve only.
7 The damage or destruction of the Lot caused by natural wear, inherent flaws, internal or potential defects, change of substance itself, self-combustion, self-heating, oxidation, corrosion, leakage, rat-bite, worm-bite, change in the atmosphere (climate or air temperature), change in humidity or temperature, or other gradual changes or caused by force majeure such as earthquake, tsunami, war, hostile action, armed conflict, terrorism, coup, strike and social riot, or nuclear radiation or radioactive pollution as well as the damage or destruction of book frames, glass, drawers, bottom pads, trestles, mountings, insert pages, scroll heads or other similar accessories caused by any reason are not within the scope of insurance indemnity.
Section 24 Commission and Expenses
1 Unless as otherwise agreed upon by the Seller and the Company, the Seller shall authorize the Company to deduct 10% of the Hammer Price as Commission, 1% of the Hammer Price as Insurance Fee, HK$1,200 per page as Catalogue Fee and at the same time deduct other expenses.
2 Despite the fact that the Company is the Seller’s agent, the Seller agrees that the Company may collect the Commission and other expenses from the Buyer in accordance with provisions in Section 15 hereof.
3 If the Lot fails to sell, the insurance premium payable by the Seller shall be equivalent to 1% of the Reserve.
Section 25 Sale Arrangements
1 Unless as otherwise agreed upon by the Company and the Seller, all Lots are offered subject to a Reserve. The Reserve shall be determined by the Seller and the Company in writing through consultation, and no modification of the Reserve shall be made without the prior consent of the other party after it is determined by both parties.
2 The Company shall be entitled to sell the Lot below the Reserve. If we do so, we shall pay the Seller the difference between the Hammer Price and the Reserve. In such cases, the Seller's obligations to us with respect to such a Lot are the same as if it had been sold at auction.
3 If any Lot is bought in or otherwise unsold by auction, we are authorized as the exclusive agent for the Seller for a period of up to 30 days following the Auction Date to sell such Lot privately at a price which will give the Seller a net proceed (i.e. after deduction of all charges due from the Seller) at least equivalent to what the Seller would have been entitled had the Lot been sold at the Reserve. Or, subject to Seller's consent, we can sell the Lot at a lesser amount. In such
cases, the Seller's obligations to us with respect to such a Lot are the same as if it had been sold at auction.
4 The Seller shall not bid for the Lot consigned to the Company by himself/herself/itself for auction, or authorize any other person to bid on his/her/its behalf. Only the Company has the right to bid on behalf of the Seller at a price not more than the Reserve. The Seller shall bear all legal liabilities and compensate for all losses caused to the Company if the Seller violates this Article.
5 Any estimate given, orally or in writing, is a matter opinion only and is not an assurance of the price the Lot will eventually be sold.
6 In no circumstance shall the Company bear any liability for failure to sell the Lot at the Reserve at the auction held by the Company.
7 The Company may decide the following matters at its absolute discretion:
(i) Explanation and/or appraisal of any aspect of any Lot through the catalogue of the Lot and/or news media and/or other carriers;
(ii) The illustration of the Lot in the catalogue, the exhibition of the Lot and other forms of publicizing the Lot, the arrangement in the promotional activities as well as the standards of payable expenses;
(iii) Whether to consult any expert or not;
(iv) Suitability of a Lot for auction by the Company;
(v) The combination or division of Lots for sale;
(vi) Whom should or should not be admitted to the auction, which bids should be accepted;
(vii) The date of auction, the place of auction, the conditions of auction and the manner of auction;
(viii) To agree on special conditions of the payment of the Purchase Price;
(ix) To remove, store and insure the sold Lot;
(x) To settle claims brought by the Buyer or the Seller in accordance with the relevant articles hereof;
(xi) To take other necessary measures to collect the outstanding payment owed by the Buyer to the Seller.
Section 26 Withdrawal and Suspension
1 The Seller may withdraw the Lot at any time prior to the Auction Date by issuing a written notice to the Company. In the case that the Lot has been listed in the catalogue or other public materials and they have begun to be printed at the time of the withdrawal of the Lot, the Seller shall pay an amount equal to 20% of the Reserve of the Lot and all other expenses. In the case that the catalogue or other public materials have not been printed, the Seller shall pay an amount equal to 10% of the Reserve of the Lot and all other expenses. Any dispute or claim arising out of the Seller’s withdrawal of the Lot shall be borne by the Seller and has nothing to do with the Company.
2 After the Seller has signed the consignment auction contract with and delivered the Lot to the Company, if for any reason the Company believes that the Lot is not suitable for auction by the Company, the Seller shall collect the Lot within thirty days from the issuance date of the Company’s notice (fees for packaging and transportation shall be at the Seller’s own expense). The consignment auction contract between the Seller and the Company will terminate on the date when the Seller collects the Lot. If during the above-mentioned period the Seller fails to collect the Lot, the consignment auction contract will automatically terminate upon the expiration of such period. If within seven days after the termination of the consignment auction contract the Seller does not collect the Lot, the Company shall have the right to charge the Storage Fee, insurance fees and other reasonable expenses, and to dispose of the Lot in a way the Company deems appropriate. The Seller is responsible for the collection of, if any, the amount obtained from the disposal after deducting all the fees and expenses incurred by the Company.
3 The Company has the right to suspend the auction of any Lot at any time before the actual auction under any one of the following situations:
(i) The Company has an objection to the ownership or authenticity of the Lot;
(ii) Any third party has an objection to the ownership or authenticity of the Lot and can provide relevant evidence materials as to the basis of such objection, pays a security pursuant to the Company’s requirements and is willing to take the corresponding liabilities for the legal consequences and all losses caused by the suspension of auction;
(iii) The Company has an objection to the explanation of the Seller or the accuracy of the Seller’s warranty mentioned in Article 7 hereof;
(iv) Any evidence proves the Seller has violated or will violate any provisions of these Conditions of Business;
(v) For any other reason, the Company believes that the auction of such Lot shall be suspended.
Whichever situation causes such suspension, if the Company is aware of any ownership or other dispute in relation to the Lot being consigned for auction, the Company shall have the right to refuse to return such Lot until the dispute is settled.
Section 27 Successful Bids
1 After the sale, we shall ask the Buyer for full payment. Should there be no disputes between the Buyer and us, we shall pay the Seller within 35 days after Auction Date the Hammer Price less applicable deductions.
2 If the Buyer pays late, we shall only make payment to the Seller within 7 days after receipt of payment from Buyer.
3 The Seller shall pay taxes to the government for the Proceeds of Sale obtained. If the Company has the obligation to withhold and pay taxes according to the provisions of the relevant laws, the Company will follow the provisions of the laws. The Seller shall assist in handling all the formalities and bear the corresponding taxes and expenses.
4 The Seller shall, at the time of its consignment of the Lot to the Company for auction, be deemed to have authorized the Company to demand the corresponding outstanding payment from the Buyer on behalf of the Seller. Where the Buyer fails to fully pay the Purchase Price within seven days after the Sale Date (including the Sale Date), the Company shall have the right to demand the Commission and other Buyer’s Expenses according to the provisions of Article 18 hereof. In addition, the Company shall as well have the right to take appropriate measures (including but not limited to resorting to legal proceedings) to assist the Seller in collecting such outstanding payment from the Buyer where it is deemed by the Company to be practicable. The above provision does not exclude the Seller’s right to demand in person or authorize any third party to demand the outstanding payment from the Buyer and does not obligate the Company to demand the corresponding outstanding payment from the Buyer on behalf of the Seller under any circumstance. This Company shall not bear the corresponding liability for the Seller because of the Buyer’s failure to pay the Purchase Price under any circumstance.
5 The sale shall be deemed as cancelled should the Buyer fail to make full payment within 60 days after Auction Date. We shall therefore return the Lot to the Seller without any liabilities and obligations.
6 Should we be obliged to take the Lot back from the Buyer on the basis that it is a fake or forgery, the Seller shall refund to us in full the proceeds of sale he/she so received.
7 Unless otherwise instructed by the Seller, we shall pay the Seller in Hong Kong currency.
Section 28 Unsold Lots
28.1 Private sale after the auction
The Company may re-negotiate with the Seller on the revised Reserve and sell the Lot in private sale, and pay the Seller the Proceeds of Sales adjusted based on the revised Reserve.
The Company may re-auction the Lot. The Commission and expenses scale set out in the previous consignment auction contract remains applicable.
28.3 Collection of the Lot
The Seller shall collect the Lot within 7 days upon the issuance of our notice on collection or within 30 days after Auction Date (whichever date is earlier) and pay the Company the service fee for unsuccessful auction and other expenses. Fees for packaging and transportation shall be paid by the Seller. The Company shall, upon expiration of such time limit, be entitled to charge the Storage Fee, insurance fees and other reasonable expenses. If any such Lot is not collected within 60 days after the date of sale, the Company shall have the right to sell the Lot through public auction or other means of sale according to the conditions the Company deems appropriate. The Company shall also be entitled to deduct the service fee for unsuccessful auction and other expenses payable by the Seller in the first auction as well as all expenses for re-sale of the Lot by auction from the Proceeds of Sale before paying the remaining amount to the Seller.
28.4 Risk Assumption
The Seller shall assume liability for all risks and expenses that occur after the time limit prescribed herein if the Seller fails to take back the Lot not auctioned or the unsold Lot within such the time limit. The Seller shall assume liability for all risks and expenses of the Lot not auctioned or the unsold Lot at the earlier of the thirtieth day after the Company issues a notice on collection of the Lot to the Seller (including the notice date) and the time when the Seller collects the Lot in accordance with these Conditions of Business. Where the Seller requests Company to assist it in the return of the Lot within the time limit provided herein and the Company so agrees, the Seller shall assume liability for all risks and expenses that occur after the Lot leaves the place designated by the Company. Unless the Seller specifically gives an indication and pays insurance premium in advance, the Company has no obligation to insure the Lot for any period after its departure from the place designated by the Company. Where the Seller requests the Company to assist it in returning the Lot by means of post, express delivery or other third-party transportation, the Company shall be deemed to have returned the Lot and the Seller shall be deemed to have collected the Lot upon the Company’s delivery of the Lot to the post, express delivery and transportation entities, companies or their employees/branch offices.
(i) If any Lot is unsold, or is excluded or withdrawn from the sale for any reasons, the Seller must collect the Lot from us within 7 days upon the issuance of our notice or within 30 days after Auction Date (whichever date is earlier). Any costs incidental to the collection of the Lot shall be borne by the Seller. The Seller shall pay all the expenses in full before the Lot is released.
(ii) If any such Lot is not collected within 60 days after the date of sale or the abovementioned date of notice (whichever date is earlier), we shall have the right to dispose it by auction or any other means as we deem appropriate. The proceeds we so received, after deducting all expenses incurred, shall be for Seller's account and he/she shall collect same from us.
(iii) The Seller shall assume all the risks should he/she fail to collect any unsold Lots. If the Seller requires our assistance in arranging the return of the Lots, he/she shall bear all the risks and expenses so incurred. Unless the Seller requests, normally return Lots will not be covered by insurance.
Part 4 Miscellaneous
Section 29 Copyright
The Seller authorizes the Company to produce photos, illustrations, catalogue, video products and advertising materials in any other forms of the Lot that it has appointed the Company to place for auction, the Company is entitled to the above photos, illustrations, catalogue, video products and advertising materials in any other forms of the Lot, and has the right to use them. Without prior written consent of the Company, the Buyer and anyone shall not use them. The Company and the Seller have not made any statement and warranty as to whether the Lot is restricted by copyright or if the Buyer has obtained any copyright of the Lot.
Section 30 Obtaining Information, Video Taking
In connection with the operation of the auction business of the Company, the Company may make audio recording, video recording of any auction process, and need to collect personal information from the Bidder or ask for the information of the Bidder from third parties (such as asking for credit review from banks). Such information will be handled and kept in confidential by the Company. However the information concerned may be provided to the Company, its divisions, affiliates and subsidiaries in order to assist the Company to provide comprehensive services to Bidders, carry out client analysis, or in order to provide services that meet the requirements of the Bidder. For the sake of the interest of the Bidder, the Company may also provide some personal information of the Bidder to third party service providers (such as cargo liners or storage houses). By participating in the auction of the Company, the Bidder agrees to all previously stated disclosure. If the Bidder would like to obtain or amend his/her/its personal information, please contact the customer service department.
Section 31 Authentication Right
The Company may authenticate the Lot if necessary. In case of any discrepancy between the authentication conclusion and the conditions of the Lot in the consignment auction contract, the Company shall have the right to request modification or rescission of the consignment auction contract.
Section 32 Notice
The Bidder and the Buyer shall inform the Company their permanent and effective correspondent address and contact methods in the bidding registration documents or by other methods recognized by the Company. If there are changes, they shall inform the Company in writing immediately.
The notices mentioned in the Conditions of Business only refer to written notices sent by letter or fax formats. A notice shall be deemed as served at the following moment:
(i) If it is served by hand, when it reaches the address of the party concerned;
(ii) If it is sent by post, then it is the seventh day after it is posted;
(iii) If it is sent by fax, then it is the moment the outgoing fax transmission is confirmed by the fax machine.
Section 33 Severability
If any part of these Conditions of Business is found by any court to be invalid, illegal or unenforceable, that part shall be discounted and the rest of the conditions shall continue to be valid to the fullest extent permitted by law.
Section 34 Law and Jurisdiction
1 The Conditions of Business and the related matters, transactions, any disputes caused by or in connection with the participation in the auction activities of the Company pursuant to the Conditions of Business shall be subject to Hong Kong laws and shall be interpreted by Hong Kong laws. The Company and the Buyer and the Bidder shall submit to the exclusive jurisdiction of Hong Kong courts.
2 By bidding at auction, whether in person or by agent, by absentee bid, telephone or other means, the Buyer shall be deemed to have accepted these Conditions and submitted, for the benefit of Marchance to the exclusive jurisdiction of the courts of Hong Kong.
Section 35 Right of Interpretation
The right of interpretation of these Rules shall belong to the Company.
Section 36 Language
The Chinese version of the Conditions of Business shall be the standard texts; the English version is for reference only. Should there be any discrepancy between the English version and Chinese version, the Chinese version shall prevail.