喜马拉雅及亚洲艺术品拍卖会

CONDITIONS OF BUSINESS
BROMLEY FINE ART LIMITED
Notice to Buyers and Sellers
The conditions set out below and all other terms, conditions and notices set out in Bromley Fine Art Limited?s (?Bromley? or ?We? or ?we?, ?us?, ?our?) catalogues, including online catalogues, or announced by the auctioneer or posted in the sale room by way of notice (together 'the Conditions of Business') form the terms on which Bromley?s contracts, as auctioneer, with actual and prospective sellers and buyers.
The Conditions of Business apply to all aspects of the relationship between you and us regarding the sale, purchase or holding by us of property. They also apply to you if you require inspection, appraisal or valuation of property. They are therefore very important and you should read them carefully. You agree that any future dealings which you may have with Bromley shall be on the Conditions of Business current at that particular time.
You should note that Bromley generally acts as agent for the seller. Any concluded contract of sale is made directly between the seller and the buyer.
Bromley is dependent on the seller for much of the relevant factual material pertaining to items offered for sale. Bromley cannot and does not undertake full due diligence on every item sold. Buyers therefore have a responsibility to carry out their own inspection and investigations to satisfy themselves as to the nature of the items which they are interested in buying. We specifically draw to the attention of all potential buyers to Conditions 10 and 11 which limit the extent to which Bromley and the seller may be liable. We also specifically draw to the attention of all sellers Conditions 33 and 37 which set out the basis of the relationship between Bromley and the Seller and limit the extent to which Bromley may be liable to the Seller.
It is the Buyer?s and Seller?s responsibility to make reasonable enquiries to ascertain whether the auction is an Online Auction or a live auction prior to any sale.
Actual and prospective buyers and sellers are bound by all Conditions of Business. However, for ease of reference, we have divided the Conditions set out below into sections. Section A explains certain terms that are used regularly throughout the Conditions, Section B sets out those Conditions which particularly relate to buyers, Section C sets out those Conditions which particularly relate to sellers, Section D sets out those Conditions which relate to Online Auctions, and Section E sets out those Conditions which relate to both buyers and sellers. Where possible in these Conditions of Business, Bromley is referred to as 'we', 'us' and 'our' and actual and prospective buyers and sellers are, as applicable, referred to as 'you' and 'your'.

Section A: Explanation and definition of certain terms used in the Conditions of Business
? Definitions:
In these Conditions of Business, terms placed in inverted commas shall have the meaning set out below:
(a) 'buyer' means the person who makes the highest bid accepted by the auctioneer, or that person's disclosed principal;
(b) 'buyer's premium' means the commission of 20% on the 'hammer price' payable to ' ?Bromley?s? by a 'buyer' at the rates posted in the auction room at the time of the relevant sale, together with an amount in lieu of Value Added Tax ('VAT') if applicable. If the Buyer or the bidder has purchased the Lot(s) via any third-party online platform and/or the Catalogue, the buyer?s premium shall be increased by an additional 3% to 5% (23% to 25% overall) on the ?hammer price? payable to ?Bromley?s by a ?buyer? at the rates posted in the auction room and/or the Catalogue at the time of the relevant sale, together with an amount in lieu of VAT. ;
(c) 'CITES' means Convention on International Trade in Endangered Species;
(d) Catalogue means a catalogue, price list or other publication or price list, including but not limited to any online catalogues on online third-party auction platforms or as available on www.bromleyfinearts.com;?(e) 'expenses' in relation to the sale of any lot means Bromley?s charges and expenses including but not limited to legal expenses, charges and expenses for insurance, catalogue and other reproductions and illustrations, any customs duties, advertising, packing or shipping costs, reproduction rights' fees, taxes, levies, costs of testing, searches or enquiries relating to any lot, or costs of collection from a defaulting 'buyer', plus an amount in lieu of VAT if applicable on illustration and insurance expenses;
(f) Fine Art means and shall not be limited to paintings, drawings, bronzes, jade carvings, porcelains, small furniture, jewellery, and textiles;
(f) Goods means any goods forming a Lot or Lots as described in the relevant descriptions including but not limited to Fine Art and/or equipment;
(g) 'hammer price' means the price at which a lot is knocked down by the auctioneer to the 'buyer' or, in the case of a post-auction sale, the agreed price; in both instances excluding the 'buyer's premium', any applicable taxes and any 'expenses';
(h) ?live auctions? means onsite auctions held at a particular premises;
(i) Lot means any single Good, group of Goods, or set of Goods sold at an auction either at an Online Auction or on the Premises item deposited with us for sale at auction including items described against any Lot number in a Catalogue;
(j) 'low pre-sale estimate' means the low estimate of 'Bromley?s' latest low and high pre-sale estimates of the value of the property, whether or not communicated to the 'seller';
(k) 'mid pre-sale estimate' means the average of 'Bromley's' latest low and high pre-sale estimates of the value of the property, whether or not communicated to the 'seller';
(l) 'net sale proceeds' means the 'hammer price' of the lot sold to the extent received by 'Bromley's' in cleared funds, less 'seller's commission' and 'expenses';
(m) Online Auction means an auction conducted online between buyer and seller using any online third-party platform;
(n) Premises means the premises in which the auction is taking place, and, where relevant the location where the individual Lot and/or Lots under the control of ?Bromley?s? are stored
(o) 'seller' means the owner or the owner's agent or the person in possession of the property consigned. If there are multiple owners or agents or persons in possession, each shall assume, jointly and severally, all obligations, liabilities, representations, warranties and indemnities as set forth in these Conditions of Business;
(p) 'seller's commission' means the commission payable to 'Bromley' by a 'seller' at the rates applicable at the date of sale of the property or at the date of loss or damage to the property if applicable, together with an amount in lieu of VAT if applicable. The applicable 'seller's commission' rates are those set out in the 'Bromley?s' seller's contract which are available at Bromley?s offices at 2 Leman Street, London, E1 8FA and the terms of which are incorporated in these Conditions of Business;
(q) 'Bromley's means Bromley Fine Art Limited, a limited company, company number 09688943;
?(r) 'Bromley's affiliated company' means any company (other than Bromley's) being a subsidiary of Bromley Fine Art Limited for the time being within the meaning of Section 736 of the Companies Act 1985;
(s) 'total amount due' means the 'hammer price' in respect of the lot sold, together with the 'buyer's premium', and any charges, fees, interest, taxes and 'expenses' due from a 'buyer' or defaulting 'buyer'.
Section B: Conditions mainly concerning buyers
2. Bromley's capacity: 'Bromley' sells as agent for the 'seller' except where it wholly or partly owns any lot as principal. 'Bromley? may have a legal or equitable interest in, or have made a financial commitment in respect of, the lot as secured creditor or otherwise. Where 'Bromley' sells as agent, any sale will result in a contract made directly between the 'seller' and the 'buyer'.


Buyer?s obligation to inspect
? Examination of goods: Goods auctioned are usually of some age. All goods are sold with all faults and imperfections and errors of description. Illustrations in catalogues are for identification only. You should also note that we have not tested any electrical or mechanical goods prior to the sale (whether in respect of their ability to function, their safety of operation or otherwise) and you are solely responsible for testing such goods before using them. You should also note that we have not tested or examined the authenticity of any Fine Art or Goods prior to the sale. You should also note that we have not examined, tested or checked the authenticity of any descriptions relating to the Fine Art or Goods prior to the sale.
? Accordingly, as regards any Lot in which you are interested, you undertake:?(i) to inspect and satisfy yourself prior to the sale as to the condition and description of the Lot;?(ii) to rely on your own judgment as to whether the Lot accords with its description;?(iii) to seek any independent expert advice reasonable (in the light of your particular expertise and the value of the lot) to satisfy yourself as to authorship, attribution, authenticity, genuineness, origin, date, age, provenance or condition of the lot; and
(iv)not to rely on any illustration in any catalogue.
? In addition to Condition 5, for an Online Auction only, the Buyer shall provide notice to the Seller if the Buyer wishes to fulfil its due diligence under Condition 5 above and attend the Premises to inspect the Lot(s), Good(s) or Fine Art. The period of any notice from the Buyer to the Seller under this Condition shall be at the sole discretion of the Seller.
? The Buyer purchases the Lot from the Seller at its own risk and if they do not inspect or examine the Lot, Goods or Fine Art prior to the sale as per Condition 5, Bromley?s is not liable to the Buyer for any errors, acts or omissions in relation to the purchasing of the Lot, Goods or Fine Art, including but not limited to any issue relating to a counterfeit Lot, Goods or Fine Art.
? To assist you, we may refer in a catalogue to particular faults or imperfections, but any such guidance, which we provide does not purport to be exhaustive. You will be deemed to have knowledge of all matters which you could reasonably have been expected to find out given your particular expertise and the exercise by you of reasonable due diligence.
? Any descriptions contained in the Catalogue are descriptions provided by the Seller to the Buyer, and ?Bromley?s? shall have no responsibility or liability whatsoever to the Buyer for any errors, acts or omissions in any descriptions contained in the Catalogue.
Bromley's liability to buyers
9. Exclusion of liability:
(i) 'Bromley's' gives no guarantees or warranties to the 'buyer' and any implied warranties or conditions are excluded (save in so far as such obligations cannot be excluded by statute);
(ii) in particular, any representations, written or oral and including those in any catalogue, description of the Lot, description of the Fine Art, description of the Goods, report, commentary or valuation, in relation to any aspect or quality of any lot, Fine Art or Goods including authenticity, authorship, completeness, provenance, attribution, genuineness, correctness of description, correctness of all measurements and pictures (which are approximate only), condition of the Lot(s) or price or value, (a) are statements of opinion only and (b) may be revised prior to the Lot being offered for sale (including whilst the Lot is on public view); and (iii) none of 'Bromley's', any 'Bromley's affiliated company', or any agent, employee or director thereof shall be liable for any errors or omissions in any such representations.
(iii) For the avoidance of doubt, the parties to the contract of sale of the Lot are the Buyer and the Seller. ?Bromley?s? is not a party to the contract of sale but acts as the Seller?s agent only and is not liable for any breach thereof by either the Buyer or the Seller.
Limitation on claims by buyers:
10. Without prejudice to Conditions 3 and 5 above, and save insofar as it relates to any liability which we may have for personal injury or death, any claim against 'Bromley's' by the 'buyer' shall be limited to the 'hammer price' and the 'buyer's premium' actually paid by the 'buyer' to Bromley's with regard to that lot.
Seller's liability to buyers
11. Seller's obligations to buyers: The 'seller's' obligations to you are limited to the same extent as our obligations to you. Any express or implied conditions or warranties are excluded save insofar as it is not possible to exclude obligations implied by statute. In addition, we reserve the right to agree variations to the 'Seller's' warranties with the 'Seller'.
At the sale
12. Rights of participation at auction: We have the right, at our absolute discretion, to refuse to allow any person to participate in our auctions, to refuse admission to our premises to any person, to refuse any bid, to withdraw any Lot(s), Good(s) or Fine Art, and in the case of any dispute we have the right, at our absolute discretion, to cancel the sale of the Lot(s).
13. Bidding as principal: If you make a bid at auction, you do so as principal and will be held personally and solely liable for that bid unless we have previously agreed with you in writing that you do so on behalf of an identified third party who is acceptable to us. In circumstances where we have so agreed, both you and the third party will be jointly and severally liable for all obligations arising from the bid and the third party shall be bound by the Conditions of Business by your bidding as his agent in the same way as if he were bidding personally.
14. Commission and telephone bids: Although your interests are likely to be best served if you attend auctions in person, you may bid by telephone or by leaving a commission bid as set forth below.
(a) Commission bids (or absentee bids): We will seek to carry out any instructions to bid at an auction on your behalf which we receive from you sufficiently in advance of the sale and which we consider, in our discretion, to be sufficiently clear and complete. We may require the ?buyer? to complete the ?registration and bidding form?. If we receive commission bids on a particular lot for identical amounts, and at auction these bids are the highest bids for the lot, it will be sold to the person whose bid was received first by us. However, our obligation in relation to commission bids is undertaken subject to our other commitments at the time of sale and the conduct of the sale may be such that we are unable to bid as requested. We cannot accept liability for failure to make a commission bid for any reason. You should therefore attend personally or send an agent to the auction if you wish to be certain of bidding.
(b) Telephone bids: We may be prepared to allow you to bid by telephone but, in such circumstances, we reserve the right to require you to confirm relevant details in writing before we agree to do so. We are not responsible for the failure of any telephone bid for any reason. We reserve the right to record telephone bids. We may require the ?buyer? to complete the ?registration and bidding form?. We encourage bidders to leave a Back-Up in the bidding form if we cannot contact the bidder by telephone when the Lots are up for sale. We will execute the Back-Up Bid for the bidder up to the maximum amount stated and we shall try to purchase the Lot at our discretion as low as possible.
15. Conduct of the auction: The auctioneer will commence and advance the bidding in levels that he considers appropriate in the light of the value of the lot under auction and of competing bids. The auctioneer is entitled to make consecutive bids or make bids in response to other bids on behalf of the 'seller' up to the reserve placed on the lot, although the auctioneer will not indicate during the auction that he is making such bids on behalf of the 'seller'. The 'buyer' acknowledges the rights of the auctioneer and the 'seller' set out in this Condition and waives any claim that he might have in this connection against 'Bromley's' or the 'seller'.
16. Sale of a lot: At the absolute discretion of Bromley?s, the ?buyer? may be asked to pay a deposit for the Lot(s) prior to the conduct of any auction. The person who makes the highest bid accepted by the auctioneer (or that person's disclosed principal, if applicable) shall be the 'buyer'. The striking of the auctioneer's hammer marks the acceptance of the highest bid and identifies the 'hammer price' at which the lot is knocked down by the auctioneer to the 'buyer'. The striking of the auctioneer's hammer also marks the conclusion of a contract of sale between the 'seller' and the 'buyer'.
17. Auctioneer's discretion: Notwithstanding Conditions 11 and 12 above, the auctioneer has absolute discretion at any time (including after any sale being made between the Buyer and the Seller) during the course of the auction to: (i) withdraw any Lot(s), Goods or Fine Art;? (ii) re-offer a lot for sale if the auctioneer reasonably believes that there is an error or dispute; and/or (iii) take such other action as he reasonably thinks fit in the circumstances.
18. Currency converter: Auctions are conducted in pounds sterling. Where a currency converter is operated, it is for your convenience only. Errors may occur in the currency converter and you should not rely on it as a substitute for the sterling bidding.
19. Video images: At some auctions, there will be a video screen in operation for the convenience of both 'buyers' and 'sellers'. Errors may occur in the operation of the video screen. We cannot accept responsibility either for the quality of the image reproduced on the video screen, or for the correspondence of the screen image to the original.
After the sale
20. Payment: Immediately and in full (including any applicable taxes whatsoever ,VAT and credit card charges) after the conclusion of the relevant session of the auction in which the Lot was sold, you shall pay us, in pounds sterling, the 'total amount due' (including 'buyer's premium). Payment will not be deemed to have been made until we are in receipt of cash or cleared funds.
21. Collection of purchases: This Condition shall only apply if Condition 21 has been satisfied regarding payment. You shall collect the purchased Lot, at your expense, no later than five working days after the day of the sale. For the Online Auction only, the ?seller? ship out purchased Lot(s) directly to the ?buyer? at ?buyer?s? expense. Alternately Bromley?s may either collect the purchased Lot, at your expenses by arranging a third-party shipping company to collect on your behalf. Bromley?s shall accept no liability whatsoever and howsoever occurring in relation to any third-party shipping company failing to deliver the Lot to you. For this Condition, time is not of the essence. Unless we exercise our discretion to do so, and without prejudice to Condition 23(g) below, the Lot shall not be released to you before receipt by us of the 'total amount due'.
22. Passing of title: You shall always remain liable for the 'total amount due' and you shall not acquire title to the lot sold until you have made payment in full of the 'total amount due' in respect of that lot and 'Bromley's' has applied such payment to the lot (even if, without prejudice to Condition 17, we exercise our discretion to release it to you). Other than where we have agreed with you to the contrary, and subject to Condition 23(d) below, any monies received from you shall be applied in order of the oldest debt owed by you to 'Bromley's' or the oldest purchase made by you at 'Bromley's' or any 'Bromley's affiliated company' having regard to the date of sale and the number of the lot.
23. Proceeds of on-sale: In circumstances where you on-sell the lot or any part of the lot before making payment in full to us of the 'total amount due', you agree to:
(i) hold on trust for us the proceeds of that sale to the extent that they are equal to the 'total amount due' less any amounts from time to time paid to us applied to that lot; and
(ii) keep the amount that you hold on trust for 'Bromley's' in respect of any lot in a separate bank account.
24. Transfer of risk: Any lot purchased is entirely at your risk from the earlier of:? (i) the time you collect the lot purchased; or
(ii) the time that you pay to us the 'total amount due' for the lot; or
(iii) five (5) working days after the day of the sale.
25. You shall be solely responsible for insuring the lot purchased from the time risk passes to you.
26. You will be compensated for any loss or damage to the lot which occurs after sale but prior to the time risk passes to you. The maximum amount of compensation shall be the 'hammer price' of the lot plus the 'buyer's premium' received by 'Bromley's', and shall exclude any indirect or consequential loss or damage. However, we will not, in any circumstances, be liable for any loss or damage caused to frames or to glass which is covering prints, paintings or other works unless the frame or glass is, in itself, the object sold at auction. Nor will we be liable for loss or damage caused by any of the events set out in Condition 31 below.
27. Packing and handling: The packing and handling of lots is entirely at your risk and expense and we shall not, in any circumstances, be responsible for any acts or omissions of the packers or shippers.
28. Export: The export of any lot from the United Kingdom or import into any other country may be subject to one or more export or import licences being granted. It is the 'buyer's' responsibility to obtain any relevant export or import licence. Lots purchased shall be paid for in accordance with Condition 16 and the denial of any export or import licence required or any delay in the obtaining of such licence shall not justify the rescission or cancellation of the sale by you or any delay by you in making payment of the 'total amount due' for the lot.
29. Remedies for non-payment: If the 'total amount due' is not paid on any lot in accordance with Condition 16, we shall, in our discretion and without prejudice to any other rights which we and the 'seller' may have, be entitled, both for ourselves and as agent for the 'seller', to exercise any one or more of the following rights or remedies:
(a) commence proceedings against you for damages for breach of contract;? (b) cancel the sale of the lot;? (c) apply any payments made by you to us or any 'Bromley's affiliated company' as part of the 'total amount due' or otherwise towards any costs or 'expenses' incurred in connection with the sale of the lot;
(d) apply any payments made by you to us or any 'Bromley's affiliated company' as part of the 'total amount due' or otherwise towards any other debts owed by you to us or any other 'Bromley's affiliated company' in respect of any other transaction;
(e) arrange and carry out a re-sale of the lot by public auction or private sale in mitigation of the debt owed by you to us. You and the 'seller' consent to and authorise us to arrange and carry out such re-sale on the Conditions of Business applicable at the time of such re-sale and agree that the level of the reserve and the estimates relevant to such re-sale shall be set at our sole discretion. The 'net sale proceeds' will be applied in reduction of your debt. If a re-sale should result in a lower price than the original 'hammer price' obtained, we and the 'seller' shall be entitled to claim the balance from you together with any costs incurred in connection with your failure to make payment. If the re-sale should result in a higher price than the original 'hammer price' obtained, the surplus shall be paid to the 'seller'. In such case, you waive any claim which you may have to title to the lot and agree that any re-sale price shall be deemed commercially reasonable;? (f) set off any amounts owed by us or any 'Bromley's affiliated company' to you against any amounts which you owe to us or any 'Bromley's affiliated company', whether as the result of any proceeds of sale or otherwise;? (g) exercise a lien over any of your property which is in our possession or in possession of any 'Bromley's affiliated company' for any reason until payment of all outstanding amounts due to us have been made in full. We shall notify you of any lien being exercised and the amount outstanding. If the amount outstanding then remains unpaid for fourteen days following such notice, we shall be entitled to arrange and carry out the sale of any such property in accordance with (e) above;? (h) charge you the 'seller's' and our reasonable legal and administrative costs incurred;? (i) charge you interest at a rate not exceeding 8.5% (six per cent) per annum above the base lending rate quoted by Barclays Bank plc from time to time on the 'total amount due' to the extent that it remains unpaid for more than five (5) working days after the date of the auction;? (j) insure, remove and store the? lot either at our premises or elsewhere at your sole risk and expense;? (k) reject any bids made by or on your behalf at any future auction or require you to make a deposit with us before accepting any such bids.
30. Remedies for failure to collect purchases: If you do not collect a purchased lot within five working days after the sale, we may arrange storage of the lot at your risk and expense. This shall apply whether or not you have made payment of the 'total amount due'. We shall release the purchased lo only after you have made payment in full of all storage, removal, insurance and any other costs incurred, together with payment of all other amounts due to us including, if applicable, the 'total amount due'. We shall, in our absolute discretion, also be entitled to exercise any of the rights or remedies listed in Condition 23 (a), (c), (e), (f), (g) and (h) above, provided that we shall not exercise our right under Condition 23 (e) above for a period of six months following the relevant sale. In the event that we exercise our rights under Condition 23 (e) above, we undertake to hold to your order the 'net sale proceeds' received by us in cleared funds less all storage, removal, insurance and any other costs or taxes incurred.
31. If the Buyer is returning the Lot(s), Good(s) or Fine Art to the Seller or Bromley?s as an agent for the Seller, then the Buyer shall be responsible for any applicable taxes or related payments associated with returning the Lot(s), Good(s) or any Fine Art.
Section C: Conditions mainly concerning Sellers
32. Seller's warranties: This Condition governs your relationship with both the 'buyer' and ourselves. If we or the buyer consider any of the warranties listed below to be breached in any way, either we or the 'buyer' may take legal action against you. You agree to indemnify 'Bromley's' and any 'Bromley's affiliated company', their respective servants, directors, officers and employees and the 'buyer' against any loss or damage resulting from any breach or alleged breach of any of your representations or warranties, or other terms set forth in these Conditions of Business. Where we reasonably believe that any breach of such representation or warranty has occurred, you authorise 'Bromley's' in its sole discretion, to rescind the sale.
33. You warrant to us and to the 'buyer' that at all relevant times (including but not limited to the time of the consignment of the property and the time of the sale):
(a) you are the true owner of the property, or are properly authorised to sell the property by the true owner;
(b) you are able to and shall, in accordance with these Conditions of Business, transfer possession to the 'buyer' and good and marketable title to the property free from any third party rights or claims or potential claims including, without limitation, any claims which may be made by governments or governmental agencies; ?(c) you have provided us with all information concerning the provenance of the property and have notified us in writing of any concerns expressed by third parties in relation to the ownership, condition, authenticity, attribution, or export or import of the lot;?(d) you are unaware of any matter or allegation which would render any description given by us in relation to the lot inaccurate or misleading;?(e) where the property has been moved to the European Union from
a country that is not a member of the European Union, the property has been lawfully imported into the European Union; the property has been lawfully and permanently exported as required by the laws of any country in which it was located; required declarations upon the export and import of the property have been properly made; any duties and taxes on the export and import of the property have been paid;
(f) you have or will pay any and all taxes and/or duties that may be due on the 'net sale proceeds' of the property and you have notified us in writing of any or all taxes and for duties that are payable by us on your behalf in any country other than the country of the sale;
(g) unless you advise us in writing to the contrary at the time you deliver the property to us, there are no restrictions, copyright or otherwise, relating to the property (other than those imposed by law) and no restrictions on our rights to reproduce photographs or other images of the property; and
(h) unless you advise us in writing to the contrary at the time you deliver the property to us, any electrical or mechanical goods (or any electrical or mechanical parts of lots being offered for sale) are in a safe operating condition if reasonably used for the purpose for which they were designed and are free from any defect not obvious on external inspection which could prove dangerous to human life or health.


Before the sale
34. Preparation for sale: You agree that we shall have sole and absolute discretion as to:? (i) the way in which property may be combined or divided into lots for sale; (ii)the way in which lots are included in the sale;? (iii) the way in which any lot is described and illustrated in the catalogue or any condition report;
(iv) the date and place of the auction(s); and
(v) the manner in which any sale is conducted.

35. We reserve the right to consult with and rely on any outside experts, consultants or restorers of our choice in relation to the property and to carry out such other inquiries or tests in relation to the property either before or after the sale as we may, in our absolute discretion, deem appropriate. This is, however, a matter for our discretion and we are under no duty to carry out such consultation, inquiries or tests.

36. Estimates: Any estimate given by us, whether written or oral, is a matter of opinion only and is intended only as a guide. An estimate shall not be relied upon as a prediction of the anticipated selling price. Any estimate given (whether written or oral and whether in a catalogue, receipt, letter or otherwise) may, in our absolute discretion, be revised from time to time.
37. Exclusion of liability: Any representations, written or oral and including those in any catalogue, report, commentary or valuation in relation to any aspect or quality of any lot, including price or value (a) are statements of opinion only and (b) may be revised prior to the lot being offered for sale (including whilst the lot is on public view). Neither 'Bromley's', any 'Bromley's affiliated company', nor any agent employee or director thereof shall be liable for any errors or omissions in any such representations.
38. Limitations on claims by seller: Any claim by the 'seller' (excluding any claim covered by Condition 31) shall, in any event, be limited to the 'net sale proceeds' in respect of that lot.
39. Withdrawal of lots by you: If you choose to withdraw property from the sale after the earlier of (i) your written agreement to sell the property with us and (ii) 12 weeks before the date of the auction of the property, you will be liable to pay to us a withdrawal fee calculated in accordance with Condition 30 below. If you withdraw property before that time, no withdrawal fee shall be payable.
40. Withdrawal of lots by us: We may withdraw a lot from sale without any liability if (i) we reasonably believe that there is any doubt as to its authenticity or attribution or (ii) it is established or alleged that any of the seller's representations or warranties set out in Condition 25 above are inaccurate in any way or (iii) you breach any provisions of the Conditions of Business in any material respect or (iv) the lot contains any endangered species for which a 'CITES' sale exemption is required and the sale exemption has not been granted by the day preceding the first day of the viewing of the sale or (v) we consider the lot to be of insufficient sale value or (vi) the lot suffers from loss or damage so that it is not in the state in which it was when we agreed to sell it or (vii) the auction at which it was proposed to sell the lot is postponed for any reason.
41. If we become aware of a competing title claim to, or lien over, a lot consigned by you, we shall not release the lot to you until the title claim or lien, as applicable, has been finally resolved to our satisfaction.
42. Withdrawal fee: If the property is withdrawn because the circumstances described in any of (i), (iv), (v), (vi) or (vii) of Condition 29 above occurs, then you shall not be charged a withdrawal fee and the property shall be returned to you at your expense provided that there is no adverse title claim on the property. If, however, the property is withdrawn for any other reason, you shall pay us a withdrawal fee together with any 'expenses'. The withdrawal fee shall be equal to the sum of the 'seller's commission' and the 'buyer's premium' and shall be calculated as if the withdrawn property had sold at the 'mid pre- sale estimate'. The rate of 'seller's commission' shall be the rate applicable at the time of consignment of the withdrawn lot. We shall not be obliged to withdraw any property from sale or to return it to you unless you have paid us the withdrawal fee.
43. Risk of loss or damage - risk borne by us: Unless otherwise agreed with us in writing at the time of delivery of the lot to us, we will, at your expense, and on the terms set out in this Condition 31, bear the risk of loss or damage in any lot from the time we receive such property until (i) risk passes to the 'buyer' of the lot following sale of the lot, or (ii) 60 days after the relevant auction, if the lot is unsold or (iii) 6 months after the lot has been delivered to us, if it remains in our possession and has not been consigned for sale by then.
44. We shall charge you, and you agree to pay, a sum in respect of the risk borne by us at a rate which shall be equal to one per cent (1%) of:
(i) the 'hammer price', if the lot is sold; or?(ii) the 'reserve price', if the lot is unsold; or
(iii) the 'mid pre-sale estimate', if the lot is not offered for sale for any reason; or
(iv) if there is no 'mid pre-sale estimate' then a reasonable estimate of the auction value of the lot at the date at which it was delivered to us.
45. Where (i) above applies, you agree that we may deduct such a sum from the 'hammer price' of the lot.
46. If any loss or damage should occur to the property whilst the risk in it is borne by us, we shall not be liable to pay you any more than the amount set out in (i)-(iv) above, as applicable, less 'seller's commission' plus 'expenses' and any applicable VAT on each of the 'seller's commission' and 'expenses'. If the property is partially damaged or partially lost and has depreciated in value, in our opinion, by less than 50%, we shall either (i) pay you the amount of depreciation and the property will be offered for sale or returned to you, or (ii) pay you for the property as set forth in the preceding sentence, and you will no longer own the property.
47. Bromley?s will not be liable for any loss or damage caused to frames or to glass covering prints, paintings or other work. Nor will Bromley?s be liable for loss or damage caused by:?(i) any third party whom we have instructed to deal with the property with your consent;?(ii) changes in humidity or temperature;?(iii) normal wear and tear, gradual deterioration or inherent vice or defect;?(iv) errors in processing;?(v) war, weapons of war employing atomic fission, or radioactive contamination.
48. Risk of loss or damage: - cover arranged by you: If you do not wish us to bear the risk of loss or damage cover in any lot delivered to us, you must agree this with us in writing at that time. In the event that you agree this with us, you will maintain insurance cover for the lot until the 'buyer' has made payment for the lot in full. In such circumstances, you agree to:
(i) provide us with a copy of a certificate of insurance for the lot;
(ii) procure a waiver of subrogation by your insurer of all rights and claims which they may have against us in connection with loss or damage, such waiver of subrogation in a form satisfactory to us, and to provide us with a copy of such waiver;?(iii) indemnify us against any claim for loss, damage or costs in respect of the lot, however that claim may arise;?(iv) notify your insurer of the terms of the indemnity set out in (iii) above;?(v) reimburse us on demand for all payments, costs or 'expenses', including legal fees, which we incur as a result of any claim. Any payment which we make under this Condition shall be binding upon you and shall be accepted by you as being conclusive evidence that we were required to make such payment, even where no legal liability has been proved; and?(vi) waive all rights and claims which you may have against us in connection with such loss or damage, other than in circumstances where the loss or damage was caused by our wilful misconduct.
49. If you fail to comply with sub paragraphs (i) and (ii) above within 10 days of delivery of any lot to us, we shall bear the risk of loss or damage in the lot in accordance with the terms of Condition 31 above. We shall bear such risk of loss or damage from the start of the 11th day following the day of delivery of the lot to us. If any loss or damage should occur to the lot after that time, our liability to you shall be limited to the excess, if any, of (a) the relevant amount set out in (i)-(iv) of Condition 31 above, over (b) any amount payable to you for such loss or damage under the insurance policy you agreed to maintain for the lot under this Condition plus any deductible applicable thereunder.
50. Reconsignment: We may, at our discretion, decide to reconsign any lot so that it shall be offered for sale at public auction by another 'Bromley's affiliated company'. We shall notify you in writing if we decide to do this and, unless you object in writing within ten (10) days of such notice, you shall be treated as consenting to such reconsignment. In those circumstances, any sale shall be conducted under the Conditions of Business in the relevant sale catalogue, save only that, as between you and us, these Conditions of Business shall continue to apply and shall prevail in the event of any conflict. Any proceeds of sale shall be remitted to you in the currency in which the auction is conducted and all local taxes shall apply.
At the sale
51. Reserves: Unless otherwise agreed in writing, each lot will be offered for sale subject to a reserve of seventy five per cent (75%) of the low pre-sale estimate agreed with you. If you and 'Bromley's' are unable to agree on a low pre-sale estimate, the reserve shall be seventy five per cent (75%) of our 'low pre-sale estimate'.
52. No reserve will exceed the final 'low pre-sale estimate' announced or published by us, other than in circumstances where the reserve agreed is in a currency other than pounds sterling and the exchange rates fluctuate between the time the reserve is agreed and the day of the auction. In those circumstances, if we are unable to agree a revised reserve with you, the reserve shall be an amount equal to the pounds sterling equivalent based on the closing exchange rate available on the business day immediately preceding the auction.
53. We shall in no circumstances be liable if bids are not received at the level of the reserve but shall be entitled, in our discretion, to sell the lot below the reserve. If we do so, we shall pay you the sale proceeds which you would have received if the lot had sold at the reserve. If a lot fails to sell, the auctioneer will announce that the lot is unsold.
54. Bidding at the sale: You may not bid for your own property.?Although we shall be entitled to bid on your behalf up to the amount of the reserve, you shall not instruct or permit any other person to bid for the property on your behalf. If you should bid on your own behalf (or instruct someone else to do so), we may treat you as the successful bidder. In those circumstances, you shall not be entitled to the benefit of Conditions 3 and 34 above and you shall pay to us a sum representing the total of the 'seller's commission', the 'buyer's premium' and all 'expenses' which we have incurred in connection with the sale of the lot. We shall be entitled to exercise a lien over the lot until payment of that sum has been made by you in full.
After the sale
55. Payment to be made by you to us: Following the sale, you will be liable to pay us the following sums: (i) the 'seller's commission'; and (ii) 'expenses'.
56. We shall be entitled to deduct each of these items from monies received from the 'buyer'. You authorise Bromley's to charge the buyer and retain the 'buyer's premium'.
57. Non-payment by the buyer: We are under no obligation to enforce payment by any 'buyer' nor to undertake legal proceedings to recover such payment. You agree to inform us of any action which you choose to take against the 'buyer' to enforce payment of the amount due to you.
58. On the condition that payment in full is received from the ?Buyer?, ?Bromley?s? shall make payment to the ?Seller? of the total amount paid by the Buyer minus the ?seller?s commission? and any expenses at least 4 weeks following receipt of the payment in full from the ?Buyer?.
59. We have absolute discretion to take and enforce any of the remedies set out in Condition 23 above including the right to cancel the sale and return the property to you. On your request, we will inform you of any action being taken against the 'buyer' and shall give consideration to any views which you may express to us on the appropriate course of action to take to recover the amount due. We shall be entitled to charge the 'buyer' interest for late payment in accordance with Condition 23(i) above and you authorise us to retain such interest for our own account.?If the 'buyer' fails to pay the 'total amount due' but we agree to remit to you an amount equal to the 'net sale proceeds', ownership of the relevant lot shall pass to us. For the avoidance of doubt, we shall have the benefit of all of your representations, warranties and indemnities set out in these Conditions of Business.
60. Post-auction sales: If any lot fails to sell at auction, we shall be entitled for a period of forty (40) days following the auction to sell the lot. Unless you agree to the contrary, any post-auction sale shall only be concluded for a price that will result in a payment to you of not less than the 'net sale proceeds' to which you would have been entitled had the lot been sold at the reserve price. If a post- auction sale is agreed, your obligations to us and the 'buyer' with respect to such lot are the same as if the lot had been sold at auction. Any reference in the Conditions of Business to the date of the auction shall be treated as being a reference to the date of the post-auction sale.
61. Unsold lot: We will send you a notice to the address given on the relevant property receipt form if any lot fails to sell at auction. If such lot has not been sold privately pursuant to Condition 40 above, you shall either reconsign the lot to usforre-saleor,alternatively, collect the lot from us. If you decide to collect the lot, we reserve the right to charge you a reduced commission amounting to fifty per cent (50%) of the 'seller's commission', plus 'expenses'.
62. The 'seller's commission' shall in these circumstances be calculated as if the lot had sold at the reserve price. The rate of 'seller's commission' shall be the rate applicable at the date of the auction.
63. If you fail either to reconsign or collect the lot as set out above within sixty (60) days of the auction, we shall, in our sole discretion, be entitled to:
(i) store the lot at an independent storage facility at your risk and expense; or?(ii) re-offer the lot for sale at public auction with a reserve no less than fifty per cent (50%) of the original reserve.
64. In the event of such re-sale, we shall be entitled to deduct from the 'hammer price' the reduced commission in respect of the initial sale plus 'expenses' together with the 'seller's commission' on the re- sale plus 'expenses'. We reserve the right to charge you our reasonable legal and administrative costs incurred.
65. Any re-sale shall be conducted under the Conditions of Business printed in the sale catalogue of the relevant sale, save only that, as between you and us, these Conditions of Business shall continue to apply and shall prevail in the event of any conflict.
Section D: Conditions mainly concerning Online Auctions
66. Unless stated otherwise in these Terms, the provisions of all Terms above apply to an Online Auction, and to the extent that such adjustments in practical application of the Terms are warranted by virtue of the electronic medium of participation in any given auction, so such adjustments shall be deemed made so to give full application to all relevant and applicable Terms.
67. All participants in the Online Auction and any live auction using a third-party online bidding platform warrant that they are legally capable of entering into binding contracts, and are of the legal age required to purchase any relevant Good(s) or Lot(s).
68. In addition, the use of any third-party online bidding platform is at all times subject to the third-party online bidding platform?s own conditions of website use. Both the Buyer and the Seller are solely responsible for checking any third-party online bidding platform?s own terms and conditions.
69. Subject to the terms and conditions of any online bidding platform, the Buyer and Seller are informed that it is likely that during an auction:
(a) potential Buyers may bid for a Lot by clicking the ?Bid? button and each bid may be final and binding as soon as the Bid button is clicked.
70. In the event of a tie between a bid placed by a potential Buyer online and any other identical bid(s) it will be at Bromley?s discretion as to which bid shall be accepted.
71. Buyers acknowledge that the online auction is a live auction and agree that each bid submitted as provided in these Terms is irrevocable and cannot be amended or corrected, even if submitted in error and notified to Bromley?s.
72. Buyers are fully liable for all bids submitted via their online bidding account (including the liability to pay in full and on time in accordance with these Terms for any Lot that is the subject of a successful bid submitted from the Buyer?s account).
73. The Seller warrants to ?Bromley?s? that he/she is not a ?trader? as defined under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The Seller, therefore, warrants to ?Bromley?s? that he/she does not act for purposes relating to his/her trade, business, craft or profession as selling the Lot(s) or Good(s) is not his/her trade, business, craft or profession. If the Seller is acting by selling the Lot(s) or Good(s) for the purposes relating to his/her trade, business, craft or profession then the Seller shall inform Bromley?s immediately and in writing.
74. The Buyer warrants to ?Bromley?s? that he/she has checked and completed his/her due diligence by confirming that the Seller is not a ?trader? as defined under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and is not acting for purposes relating to his/her trade, business, craft or profession as selling the Lot(s) or Good(s) is not his/her trade, business, craft or profession.
75. ?Bromley?s? use a number of third-party online bidding platforms ?as is? and without any warranty or condition, express, implied or statutory. Without limiting the foregoing, ?Bromley?s? accept no liability for any failures, delays or errors caused by interruptions in the availability of any third-party online bidding service or our own website or any errors or defects in their content or functionality, any software and/or hardware defects (whether the potential Buyers, Sellers, any third-party online bidding platform?s, or ?Bromley?s?) and or any internet connection problems (whether the potential Buyers, Sellers, any third-party online bidding platform?s, or ?Bromley?s?) and Bromley?s do not represent or warrant that their website or any third-party online bidding platform will be error free, virus free, or that any defects will be corrected.
76. If the Seller confirms to Bromley?s and the Buyer that it is a ?trader? as defined under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and as described above, then the Buyer?s rights shall be preserved under the Consumer Rights Act 2015 and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and the Buyer shall receive a cooling-off period of 14-days to inspect the Good(s) or the Lot(s) and the Buyer shall be entitled to an automatic refund within 14-days of any purchase from the Seller. However, if the Seller is acting as a ?trader? then it shall not be entitled to a refund of the seller?s commission and shall be liable to make payment to Bromley?s for a value equivalent to the buyer?s premium.
77. ?Total amount due? immediately after the online auction.
78. The seller can cancel the sale after the auction if no payment received within three days.
Section E: Conditions concerning both buyers and sellers
78. Governing law: These Conditions of Business and any amendment to them shall be governed by and interpreted and construed in accordance with English law.
79. Jurisdiction: (i) 'Bromley's' and all 'buyers' and 'sellers' (and any prospective 'buyers' or 'sellers') agree that the Courts of England are (subject to Condition 43(ii) below) to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims) which may arise in connection with the validity, effect, interpretation or performance of, or the legal relationships established by, these Conditions of Business or otherwise arising in connection with these Conditions of Business. (ii) The agreement contained in Condition 43(i) above is included for the benefit of 'Bromley's'. Accordingly, notwithstanding the exclusive agreement in Condition 43(i) above, 'Bromley's shall retain the right to bring proceedings in any Court which has jurisdiction by virtue of the Convention on Jurisdiction and the Enforcement of Judgements signed on 27 September 1968 (as from time to time amended and extended) or otherwise.
80. Service of process: All 'buyers' and 'sellers' irrevocably consent to service of process or any other documents in connection with proceedings in any Court by facsimile transmission, personal service, delivery at the last address known to us or any other usual address, mail or in any other manner permitted by English law, the law of the place of service or the law of the jurisdiction where proceedings are instituted.
81. Photographs and illustrations: You agree that we shall have the absolute right (on a non-exclusive basis) to photograph, illustrate or otherwise produce images of any lot consigned to us for sale. We shall retain copyright in all images created by us of any lot and shall have the right to use such images in whatever way we deem appropriate, both before and after the auction.
82. Value added tax: Where these Conditions of Business refer to an obligation to make payment by 'buyer' or 'seller', the 'buyer' or 'seller' (as applicable) shall be liable to pay any VAT required by law or, if applicable, any amount in lieu of VAT. Where the Conditions of Business give 'Bromley's' a right to receive payment from 'buyer' or 'seller', such right shall include the right to receive any VAT due or, if applicable, any amount due in lieu of VAT.
83. Copyright: No representations or warranties are made by either the 'seller' or 'Bromley's' as to whether any lot is subject to copyright, nor as to whether the 'buyer' acquires any copyright in any lot sold.
84. Data Protection: The Seller, the Buyer and Bromley?s confirm that they will comply with the provisions of the Data Protection Act 1998 when processing personal data about the other party. In order to carry out the services of this engagement and for related purposes such as updating and enhancing client records, analysis for management purposes and statutory returns, legal and regulatory compliance and crime prevention the Seller, the Buyer and Bromley?s may obtain, process, use and disclose personal data about the other party.
85. Export/import and embargoes: No representations or warranties are made by 'Bromley's' or the 'seller' as to whether any lot is subject to any export restrictions from the United Kingdom or any import restrictions of any other country. Similarly, we make no representations or warranties as to whether any embargoes exist in relation to particular lots.
86. Notices: Any notice or other communication shall be in writing and, if sent by post, shall be deemed to have been received by the addressee on the second working day after posting or, if the addressee is outside the United Kingdom, on the fifth working day after posting. If any written notice is delivered by hand, it shall be treated as having been received at that time and, if any written notice is sent by facsimile, it shall be deemed to have been received 24 hours after sending. Any notice sent to us shall be sent to 34-35 New Bond Street, London W1A 2AA. Any notice which we send to you may be sent to your last address known to us.
87. Severability: In the event that any provisions of these Conditions of Business should be held unenforceable for any reason, the remaining conditions shall remain in full force and effect.
88. Personal details: If we so request, each of the 'buyer', the 'seller' and any bidder at auction agrees to provide (in a form acceptable to us) written confirmation of their name, permanent address, proof of identity and creditworthiness.
89. Force Majeure and Events Outside of the Control of ?Bromley?s?: means any event or sequence of events beyond Bromley?s reasonable control such as an act of God including, but not limited to, fire, flood, drought, earthquake, windstorm or other natural disaster; act of any sovereign including war, invasion, act of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation; acts of terrorism; nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; civil emergency (whether an emergency be declared or not); radioactive contamination; pressure waves caused by aircraft travelling at sonic or supersonic speeds; law, judgment, order, decree, embargo, blockade, labour dispute including strike, lockout or boycott; interruption or failure of utility service including to electric power, gas, water or telephone service; failure of the transportation of any personnel equipment, machinery supply or material or the Good(s) or the Lot(s) required by the Seller for the Buyer for performance of the agreement; and breach of contract by any essential personnel.
90. Introductory commissions: We reserve the right to pay out of our remuneration a fee to any third party introducing clients or property to us.
91.Miscellaneous:?(i) The headings and introduction to these Conditions of Business do not form part of the Conditions of Business, but are for your convenience only.?(ii) No act, failure to act or partial act by 'Bromley's' shall be deemed a waiver of any of its rights hereunder.?(iii) The singular includes the plural and vice versa where the context requires.?(iv) These Conditions of Business shall not be assignable by the 'buyer' or the 'seller' without the prior written agreement of 'Bromley's'. However, these Conditions of Business shall be binding on any of your successors, assigns, trustees, executors, administrators and representatives. (v) Where terms have special meanings ascribed to them, a glossary may appear before the first lot in the relevant catalogue.