MELLORS & KIRK’S CONDITIONS OF BUSINESS
Introduction and notice to Buyers
The conditions set out below and all other terms, conditions and notices set out in Mellors & Kirk’s Catalogues, announced by the particular auctioneer conducting the sale or posted in the saleroom by way of notice (together “the Conditions”) form the terms on which Mellors & Kirk contracts, as auctioneer, with any actual or prospective Buyer or Vendor. The Conditions apply to all aspects of the relationship between Mellors & Kirk and any actual or prospective Buyer or Vendor regarding the sale, purchase or holding by Mellors & Kirk of goods and any appraisal, inspection or valuation of such goods that Mellors & Kirk is required by any actual or prospective Buyer or Vendor to undertake, therefore please read them carefully. Any prospective Buyer should pay particular attention to the Conditions before bidding. All prospective Buyers, by making a bid for any goods advertised in Catalogues, acknowledge that their attention has been drawn to the Conditions and that they are bound by them.
As auctioneer, Mellors & Kirk generally acts in every respect relating to any goods deposited with them for sale and the sale thereof as agent of the Vendor and any concluded contract for sale of any such goods will be made between the Vendor and the Buyer. Any goods delivered to the premises of Mellors & Kirk shall be deemed to be consigned for sale. In delivering to or requesting Mellors & Kirk to arrange for the collection of any item for delivery to Mellors & Kirk’s premises, all Vendors acknowledge that their attention has been drawn to the Conditions and that they are bound by them.
As auctioneer, Mellors & Kirk disclaims any responsibility or liability for any default by either the Vendor or the Buyer in connection with fulfilling any of their respective obligations under any contract for sale of goods auctioned by Mellors & Kirk concluded between the Vendor and the Buyer and/or any of the Conditions.
Mellors & Kirk is dependent upon the Vendor for much of the relevant factual material pertaining to goods offered for sale. Mellors & Kirk cannot and does not undertake full due diligence on every good offered for sale and/or sold. All prospective Buyers therefore have a responsibility to carry out their own inspection and investigations to satisfy themselves as to the nature of the goods that they are interested in buying. Mellors & Kirk specifically draws the attention of all prospective Buyers to Conditions 4, 5 and 6, which require all prospective Buyers to investigate any goods prior to bidding for such goods and specifically limit the extent to which Mellors & Kirk and the Vendor may be liable in respect of any goods (the exclusions and limitations of liability by Mellors & Kirk being consistent with its role as auctioneer of large quantities of goods of an extremely varied nature).
Mellors & Kirk specifically draws the attention of prospective Vendors to Condition 16, which contains important information as to introduction fees paid by Mellors & Kirk to referrers.
Interpretation of Conditions
1. Definitions
(a) In the Conditions, the following terms shall have the following meanings unless the context otherwise requires:
? ‘Buyer’ means, in respect of any lot, the person who makes the highest bid accepted by the auctioneer, including such person’s principal when bidding as agent;
? ’Buyer’s Premium’ means the commission on the Hammer Price realised for the lot in question payable to Mellors & Kirk by the Buyer at a flat rate of 17.5% plus VAT of such Hammer Price;
? ‘Online Bidding Fee’ means the additional charge of 3% plus VAT levied on lots bought via the online bidding facility
? 'Catalogue' includes any advertisement, brochure, estimate, list or other publication of Mellors & Kirk;
? 'Expenses' means, in relation to the sale or aborted sale of any lot, Mellors & Kirk’s charges and expenses, including (but not limited to) legal expenses, charges and expenses for insurance, Catalogue and other reproductions and illustrations, special advertising and promotion, reproduction rights’ fees and resale royalties, fees for consultancy services and expertisation, taxes, levies, costs of testing, searches or enquiries relating to any lot, carriage, travelling and subsistence costs and postage and packing costs;
? 'Hammer Price' means the price at which a lot is knocked down by the auctioneer to the Buyer, excluding the Buyer’s Premium, any applicable Expenses and any applicable V.A.T. thereon;
? 'Mellors & Kirk' means Mellors & Kirk Limited, incorporated and registered in England with company number 2324756 and whose registered office is at 29 Arboretum Street, Nottingham, Nottinghamshire NG1 4JA;
? 'Sale Proceeds' means the total net amount due to the Vendor by Mellors & Kirk and is calculated as being the Hammer Price, less the Vendor’s Commission insurance, any applicable Expenses and any applicable V.A.T. thereon;
? ‘Vendor’ means the person(s) (including their agent (other than Mellors & Kirk), executors or personal representatives) offering goods for sale at any Mellors & Kirk auction and by whom Mellors & Kirk is authorised to sell such goods. If the Vendor constitutes multiple persons, each shall assume, jointly and severally, all obligations, liabilities, representations, warranties and indemnities of the Vendor as set forth in the Conditions; and
? ‘Vendor’s Commission’ means the commission on the Hammer Price realised for the lot in question payable to Mellors & Kirk by the Vendor at a flat rate of 15% plus VAT of such Hammer Price.
(b) In these Conditions, words denoting a singular number only shall include the plural and vice versa and references to the masculine gender shall include the feminine and neuter genders and vice versa.
(c) The headings and sub-headings in the Conditions do not form part of the Conditions themselves but are for convenience only and do not affect their construction.
(d) Reference to any statute or statutory provision in the Conditions includes a reference to the statute or statutory provision as from time to time amended, extended or re enacted.
Conditions of Business principally of application to Buyers
2. Mellors & Kirk’s capacity
Mellors & Kirk sells as agent for the Vendor, except from time to time where it has a direct or indirect financial interest in a particular lot (in which case it will act in the capacity of principal). Where Mellors & Kirk sells as agent, any sale will result in a contract made directly between the Vendor and the Buyer
3. Guarantee in respect of deliberate forgeries
(a) If Mellors & Kirk sells a lot that subsequently proves to be a deliberate forgery, Mellors & Kirk shall (subject to Conditions 3(b), 3(c) and 3(d)) rescind the sale and refund to the Buyer the total amount paid by the Buyer in connection with the lot in pounds sterling, or where this is not reasonably possible, in Euros, which shall be the Buyer’s sole remedy against Mellors & Kirk and the Vendor, in place of any other remedy that may be available, and neither Mellors & Kirk nor the Vendor shall be liable for any special, indirect or consequential losses or damages (including, without limitation, for loss of profits or interest). For the purposes of this Condition 3, a ‘deliberate forgery’ means a lot that in Mellors & Kirk’s reasonable opinion is an imitation created to deceive as to age, authorship, culture, date, origin, period or source, where the correct description of such matters is not reflected by the corresponding description in the Catalogue, and which at the date of sale had a value materially
less than it would have had if the lot had accorded with the corresponding description in the Catalogue. No lot shall be considered to be a ‘deliberate forgery’ for the purposes of this Condition 3 by reason only of any damage, modification and/or restoration work of any kind (including repainting or over-painting).
(b) Subject to Condition 3(d), the guarantee given in Condition 3(a) shall only be available to the Buyer in respect of any lot on condition that, no later than 5 years after the date of sale of that lot, the Buyer must: (i) within 14 days of receiving any information that causes the Buyer to question the authenticity or attribution of the lot, notify Mellors & Kirk in writing of the Buyer’s view that the lot is a deliberate forgery, specifying the lot number, the date of the auction at which the lot was purchased by the Buyer and the grounds upon which the Buyer has formed such view (which shall be accompanied by any evidence upon which the Buyer relies); and (ii) within 7 days after delivery of such notice, return the lot to Mellors & Kirk in the same condition as prevailed at the date of its sale to the Buyer and be able to transfer good title in the lot to Mellors & Kirk free from any liens, charges, encumbrances or other third party claims arising after such date of sale.
(c) Prior to rescinding any sale under Condition 3(a), Mellors & Kirk shall have the right to request the Buyer to obtain at the Buyer’s cost the reports of 2 independent and recognised experts in the field, mutually acceptable to both Mellors & Kirk and the Buyer, setting out the reasons why the lot in question is considered to be a deliberate forgery and Mellors & Kirk agrees that it will give due and proper consideration to such expert reports. Mellors & Kirk shall not however be bound by any such expert report and reserves the right, in its absolute discretion and at its own expense, to seek the additional independent advice and views of any other expert or authority in making its final determination as to whether the lot in question is a deliberate forgery. If Mellors & Kirk agrees with the Buyer that the lot in question is a deliberate forgery, then Mellors & Kirk shall refund to the Buyer the costs incurred by the Buyer in obtaining 2 independent expert reports, provided that: (i) such costs were approved in writing by Mellors & Kirk prior to the reports being obtained; and (ii) the Buyer could not reasonably have obtained independent opinions as to the authenticity of the lot in question prior to its sale.
(d) Notwithstanding that any particular lot amounts to a deliberate forgery as defined in Condition 3(a), the respective Buyer shall have no rights to receive any refund under Condition 3(a) where: (i) the Catalogue description of the lot in question at the date of its sale accorded with the then generally accepted opinion(s) of scholars and experts at such date or such Catalogue description fairly indicated that there was a conflict of such opinions; (ii) the only method of establishing at the date of its sale that the lot in question is a deliberate forgery would have been by means of a scientific or other process not then generally accepted or available for use until after publication of the Catalogue or a process which at the date of publication of the Catalogue was unreasonably expensive, impractical to use or likely to have caused damage or (in Mellors & Kirk’s reasonable opinion) loss of value to the lot; or (iii) the Buyer has either failed to notify Mellors & Kirk or return the lot in question to Mellors & Kirk within the respective period required by Condition 3(b), in respect of which Condition time shall be of the essence.
(e) The benefit of the guarantee given by Mellors & Kirk in this Condition 3 is not capable of being transferred and, in respect of any lot, is solely for the benefit of the respective Buyer of that lot.
4. Catalogue descriptions, condition of lots and Buyer’s obligation to inspect
(a) The nature of the lots sold in any of Mellors & Kirk’s auctions is such that they will rarely be in perfect condition and are likely, due to their nature and age, to show signs of wear and tear, damage, other imperfections, restoration or repair. All lots are sold as shown and/or described and otherwise in the condition they are in at the time of their sale, with all faults, imperfections and errors of description (whether expressly identified in the Catalogue description or not). Illustrations in Catalogues are for identification purposes only. Buyers should also note that Mellors & Kirk have not tested any electrical or mechanical goods prior to their sale (whether in respect of their ability to function, their safety of operation or otherwise) and the Buyer is solely responsible for testing any such goods before bidding for, buying and (in particular) using such goods, any such use being entirely at the Buyer’s own risk.
(b) Every effort is made to ensure the accuracy of any statement as to age, attribution, authenticity, authorship, condition, date, origin and provenance of any lot, whether or not such statement forms part of the description of any such lot. Whether any such statement is made orally or in the Catalogue, it is an expression of opinion given honestly after careful consideration and research and in accordance with the standard of care reasonably expected of an auction house of Mellors & Kirk’s standing. It is not, and all prospective Buyers acknowledge that any such statement shall not be taken as being, in any way exhaustive or a statement or representation of fact. All prospective Buyers also acknowledge that the particular auctioneer conducting the sale of any lot may, at such sale and at his discretion, modify any description or statement in the Catalogues regarding that lot. Any such modifications, whether given orally or in writing, are expressions of opinion of the particular auctioneer alone and are not, and all prospective Buyers acknowledge that they are not to be taken as being, in any way exhaustive or statements or representations of fact. No absentee bidder or bidder by telephone, facsimile or other electronic means for any lot that he has purchased may reject that lot on the basis that he was not aware of and/or did not hear any such modification(s) having been made and/or being made by the particular auctioneer conducting the sale of that lot.
(c) All prospective Buyers acknowledge that, where the following terms are used in the Catalogue, they shall bear only the meaning given to them in this Condition 4(c) and, in any event, any such use of any such terms shall be a non-exhaustive expression of opinion only: (i) where the artist's full name is used (or the artist's initials, if his full name is unrecorded), the work is in our opinion by the artist; (ii) where the expression "attributed to" is used, the work is in our opinion possibly by the artist; (iii) where the term "After" is used, the work is in our opinion a copy of a work by the artist not necessarily of the same date; (iv) where the term "signed/dated/inscribed" is used, the work in our opinion has been signed, dated or inscribed by the artist; and (iii) where the expression "bears signature/date/inscription", the work in our opinion has not been signed, dated or inscribed by the artist.
(d) Lots sold are extremely varied in terms of age, condition and type and may be purchased for a variety of purposes. Unless otherwise specifically agreed in writing, no promise is made or warranty given that any lot is or will be fit for any particular purpose.
(e) With regard to any lot in which the Buyer is interested in bidding and prior to making any such bid, the Buyer undertakes: (i) to inspect and satisfy himself prior to its sale as to the condition and description of the lot; (ii) to rely on his own judgment as to whether the lot accords with its description; (iii) particularly in the case of any lot of significant value, to seek any independent expert advice reasonably required (in view of the Buyer’s particular expertise and the value of the lot) to satisfy himself as to the age, attribution, authenticity, authorship, condition, date, origin and/or provenance of the lot; and (iv) not to rely on any illustration of the lot in Catalogues. To assist prospective Buyers, Mellors & Kirk may refer in the Catalogue to serious and obvious faults and imperfections in lots for sale. However, as outlined in Mellors & Kirk’s condition report sent to all prospective bidders for any lot upon their request prior to sale, any such reference(s) that Mellors & Kirk provides is not and does not purport to be in any way exhaustive or a statement or representation of fact and all Buyers will be deemed to have knowledge of all matters that they could reasonably have been expected to find out given their particular expertise and their exercise of reasonable due diligence.
5. Mellors & Kirk’s liability to Buyers
(a) Except for the guarantee given by Mellors & Kirk in Condition 3: (i) Mellors & Kirk gives no guarantees or warranties to the Buyer and any implied conditions or warranties, whether imposed by the Sale of Goods Act 1979 or otherwise, are hereby excluded to the fullest extent permitted by law; (ii) in particular, any representation or statement made by or on behalf of Mellors & Kirk, whether orally by any of its directors, officers, employees, agents or sub-contractors or printed in any Catalogue or any advertisement, brochure, commentary, list, report or valuation, concerning any aspect or quality of any lot, including age, attribution, authenticity, authorship, condition, date, origin, price, provenance or value, is a non-exhaustive expression of opinion only, may be revised prior to the lot being offered for sale (including whilst the lot is in public view) and is not to be taken as being or implying any warranty or representation of fact by Mellors & Kirk; and (iii) neither Mellors & Kirk nor any of its directors, officers, employees, agents or sub-contractors shall be in any way liable for any errors or omissions in any such representations or statements, save for any representations made fraudulently.
(b) Without prejudice to Conditions 3 and 5(a), and save insofar as it relates to any liability for death or personal injury resulting from Mellors & Kirk’s negligence (for which Mellors & Kirk in no way seeks to exclude or limit its liability), Mellors & Kirk’s liability for any claim brought against Mellors & Kirk by any Buyer in respect of any lot shall be limited to the aggregate of the Hammer Price for that lot and the Buyer’s Premium actually paid by that Buyer to Mellors & Kirk in respect of that lot.
6. Vendors’ liability to Buyers
No warranty is given by the Vendor of any lot to any prospective Buyer of that lot and all implied conditions or warranties, whether imposed by the Sale of Goods Act 1979 or otherwise (except those implied under Section 12 of the Sale of Goods Act 1979), are hereby excluded to the fullest extent permitted by law.
7. At the sale
(a) Mellors & Kirk has the right, at its absolute discretion, to refuse: (i) to allow any person to participate in any of its auctions; (ii) admission to its premises to any person; and (iii) any bid, without giving any reason.
(b) All prospective Buyers, in order to bid at any Mellors & Kirk auction and obtain a bidding number, must complete, sign and submit to Mellors & Kirk a registration form with their name and permanent address and provide identification to verify such details to Mellors & Kirk before bidding on any lot. Mellors & Kirk may also require the production of bank details from which payment will be made and other financial references. It is Mellors & Kirk’s policy to request that any new Buyers or Vendors preferring to make a cash payment to provide: (i) proof of identity (by providing some form of government issued identification containing a photograph or photographic counterpart, such as a passport, identity card or driver’s licence); and (ii) confirmation of their permanent address. It is against Mellors & Kirk’s general policy to accept single or multiple related payments in the form of cash or cash equivalents in excess of ?5,000. Mellors & Kirk reserves the right to seek identification of the source of funds received.
(c) When making a bid for any lot, a prospective Buyer is doing so as principal and therefore will be held personally and solely liable for that bid, unless Mellors & Kirk has previously agreed with the prospective Buyer in writing that the prospective Buyer is doing so on behalf of an identified third party who is acceptable to Mellors & Kirk. In circumstances where Mellors & Kirk has so agreed, both the prospective Buyer and the third party will be jointly and severally liable for all obligations arising from the bid and the third party shall, by the prospective Buyer’s bidding as his agent, be bound by the Conditions in the same way as if the third party were bidding personally.
(d) In respect of any lots, the Vendor authorises Mellors & Kirk to accept, and Mellors & Kirk will use reasonable endeavours to carry out, bids from prospective Buyers who are not present at the relevant auction in person, by an agent or by telephone, facsimile or other electronic means, which are delivered (whether or not in writing) to Mellors & Kirk sufficiently in advance of their sale and which Mellors & Kirk considers, in its absolute discretion, to be sufficiently clear and complete. If Mellors & Kirk receives absentee bids on a particular lot for identical amounts, Mellors & Kirk will use reasonable endeavours to sell the lot to the absentee bidder whose bid was received and accepted first, however in practice it is often impracticable for Mellors & Kirk to know which bid was received and accepted first and therefore there is no guarantee that the lot will be sold to the absentee bidder whose bid was received or accepted first by Mellors & Kirk or, in fact, either of such absentee bidders. Mellors & Kirk’s execution of absentee bids is a free service undertaken subject to its other commitments at the time of sale and, provided that Mellors & Kirk has exercised reasonable care in the handling of such bids, the volume of lots is such that Mellors & Kirk cannot accept liability in any individual circumstance for failing to execute any absentee bid or for errors and omissions in connection with absentee bidding arising from circumstances beyond our reasonable control. Prospective Buyers should therefore attend the relevant auction personally or send an agent to such auction if they wish to be certain of bidding for particular lots.
(e) If any prospective Buyers make and agree prior written arrangements with Mellors & Kirk for bidding for any lot(s) by telephone, facsimile or other electronic means sufficiently in advance of their sale, the Vendor authorises Mellors & Kirk to accept such bids from and Mellors & Kirk will use reasonable endeavours to contact such prospective Buyers to enable them to participate in such bidding, however Mellors & Kirk does not accept liability for any failing to do so or for errors and omissions in connection with any bidding by telephone, facsimile or other electronic means due to events beyond Mellors & Kirk’s reasonable control.
(f) At some auctions, there may be a video or digital screen in operation for the convenience of both Vendors and Buyers. Errors may occur in its operation, the quality of the image reproduced on the screen and/or the correspondence of the screen image to the original. Mellors & Kirk do not accept liability for any such errors due to events beyond Mellors & Kirk’s reasonable control.
(g) The representative of Mellors & Kirk conducting the auction (‘the auctioneer’) has the right at his absolute discretion to refuse any bid and to advance and regulate the bidding for any lot in such a manner as he may decide, without giving any reason or previous notice, dividing, adding to or withdrawing any lots, combining any two or more lots and, in the case of error or dispute (whether during or after the sale), determining the successful bidder, continuing the bidding, cancelling the sale, reoffering and reselling the lot in dispute or taking such other action as he reasonably thinks fit in the circumstances. If any dispute arises after the sale of any lot, the sales records maintained by the auctioneer will be conclusive in the absence of any objective or substantiated evidence to the contrary. Any post-auction sale of any lot offered at auction shall incorporate the Conditions as if sold in the auction.
(h) Subject to the auctioneer’s reasonable discretion, the person making the highest bid for any lot that is accepted by the auctioneer will be the Buyer of that lot. The striking of the auctioneer’s hammer marks his acceptance of the highest bid and the conclusion of a contract for the sale of the lot on and subject to these conditions between the Vendor and the Buyer. Risk and responsibility for each lot (including any frame, casing, mounting or glass forming part thereof) passes to the Buyer at the fall of the hammer and the Buyer shall be solely responsible for insuring the lot from the time that risk in it passes to the Buyer under this Condition 7(h).
8. After the sale
(a) In respect of any lot purchased, the Buyer will be liable to pay Mellors & Kirk the Hammer Price, the Buyer’s Premium, the Online Bidding Fee, any applicable Expenses and any applicable V.A.T. thereon. The Buyer acknowledges that Mellors & Kirk will also receive the Vendor’s Commission in respect of the sale of any lot to the Buyer and payment of the Buyer’s Premium in respect of that lot in no way affects or prejudices Mellors & Kirk’s entitlement to receive the Vendor’s Commission in respect of its sale and vice versa.
(b) If the Artists Resale Rights Regulations 2006 apply to any lot, the Buyer also agrees to pay to Mellors & Kirk an amount equal to the applicable resale royalty provided for in such Regulations and Mellors & Kirk undertake to the Buyer to pay such amount to the artist’s collection agent. Any lot affected will be identified as such next to the lot number.
(c) Immediately after the fall of hammer, the Buyer must pay the full amount due to Mellors & Kirk (comprising the Hammer Price, the Buyer’s Premium, any applicable Expenses and any applicable V.A.T. thereon) in respect of the lot in question regardless of any export, import or other licence or permit requirements for such lot.
(d) Without prejudice to Condition 8(c), the property in any lot purchased shall not pass to the Buyer until the Buyer has made payment to Mellors & Kirk of the full amount due in respect of that lot and all other lots (if any) sold to that Buyer at the same auction in pounds sterling and good cleared funds. All cheques shall be made payable to "Mellors & Kirk Limited" and, unless the Buyer has made and agreed alternative prior arrangements in writing with Mellors & Kirk, must be accompanied by (in Mellors & Kirk’s absolute discretion) a satisfactory recommendation of creditworthiness from an approved mutual acquaintance of Mellors & Kirk or such other source as Mellors & Kirk may require, otherwise the payment by cheque will not be deemed to have been made until such time as the cheque clears. Mellors & Kirk reserves the right, in its absolute discretion, to request special clearance of any cheque presented to it by the Buyer, who shall be informed immediately, by Mellors & Kirk, of any such request. Mellors & Kirk will not be required to release any lot to the Buyer until such time as property in the lot has passed to the Buyer under this Condition 8(d), and appropriate identification has been provided, and any earlier release of the lot will not in any way affect the passing of property in the lot or the Buyer’s unconditional obligation to make payment to Mellors & Kirk of the full amount due in respect of the lot.
(e) Subject to Mellors & Kirk exercising its entitlement not to release any lot to the Buyer pursuant to Condition 8(d), any lot purchased must be collected from the place of the auction at the Buyer's sole risk (which passes to the Buyer in accordance with Condition 7(h)) and expense by 4.30pm on the second working day after its sale unless the Buyer has made and agreed alternative prior arrangements in writing with Mellors & Kirk.
(f) The packing and handling of any lot is entirely at the Buyer’s sole risk and expense and Mellors & Kirk shall not, in any circumstances, be responsible for any acts or omissions of the packers or shippers.
(g) The export of any lot from the United Kingdom or import into any other country may be subject to one or more export, import, firearm, endangered species or other licence(s) or permit(s) being granted in respect of that lot and it is the Buyer’s sole responsibility to obtain all such licences and/or permits as are necessary. The denial of or any delay in obtaining any such licence or permit shall not justify the cancellation or rescission of the sale contract for the lot by the Buyer or any delay by the Buyer in making full payment for the lot in accordance with Condition 8(c).
(h) If the Buyer fails to pay Mellors & Kirk the full amount due on any or all lots sold to that Buyer at the same auction in pounds sterling and good cleared funds within 7 days of the auction, Mellors & Kirk shall, in its absolute discretion and without prejudice to any other rights that Mellors & Kirk and the Vendor may have, be entitled to exercise any one or more of the following rights or remedies: (i) charge interest at a rate equal to 4 per cent above Lloyds TSB Bank plc base rate on the full amount due on any or all such lots from the date of the auction to the date full payment of such amount is made to Mellors & Kirk in pounds sterling and good cleared funds; (ii) store any or all such lots at its premises or elsewhere at the Buyer’s sole risk and expense; (iii) cancel the sale of any or all lots sold to the Buyer in that or any other Mellors & Kirk auction(s); (iv) hold the defaulting Buyer liable for breach of contract and commence legal proceedings for the recovery of the full amount due on any or all such lots, together with interest, legal fees and all other costs of such proceedings on an full indemnity basis; (v) resell any or all such lots by auction or private sale, on such terms as Mellors & Kirk thinks fit, and the defaulting Buyer shall be liable to fully indemnify Mellors & Kirk for any shortfall arising from such resale together with all reasonable costs and expenses incurred by Mellors & Kirk in connection with such resale; (vi) in respect of any or all such lots, pay the Seller an amount up to the Sale Proceeds for such lot(s) and, if any such payment is made, the Buyer acknowledges that Mellors & Kirk shall have all the rights of the Vendor, however arising, to pursue the Buyer for the amount paid; (vii) set off any amounts owed to the Buyer by Mellors & Kirk against any amounts owed to Mellors & Kirk by the Buyer in respect of all or any such lots; (viii) reject, at any future Mellors & Kirk auction, any bids made by or on behalf of the Buyer or to obtain a deposit from the Buyer before accepting any such bids; (ix) exercise all the rights and remedies of a person holding security over any property in Mellors & Kirk’s possession owned by the Buyer, whether by way of lien, pledge, security interest or in any other way, to the fullest extent permitted by law, the Buyer being deemed to have granted such security to Mellors & Kirk and Mellors & Kirk being entitled to retain such property as collateral security for the Buyer’s obligations to Mellors & Kirk; or (x) take such other action as Mellors & Kirk deem necessary or appropriate.
(i) Where any purchased lot is not collected by or on behalf of the Buyer in accordance with Condition 8(e), whether or not payment of the full amount due to Mellors & Kirk in respect of that lot has been made in pounds sterling and good cleared funds, Mellors & Kirk shall store such lot at its premises or elsewhere at the Buyer’s sole risk and expense and shall only release such lot after payment in full has been made of removal, handling, storage and any other costs reasonably incurred by Mellors & Kirk in connection with the storage of such lot together with payment of all other amounts due to Mellors & Kirk from the Buyer.
Conditions of Business principally of application to Vendors
9. Vendor’s warranties
(a) The Vendor warrants to Mellors & Kirk and the Buyer that: (i) he is the true owner of the lot offered for sale or is properly authorised to sell that lot by the true owner; (ii) he is able to and shall transfer a good and marketable title to the lot free from any third party rights or claims; (iii) he is able to and shall transfer possession of the lot to the Buyer; (iv) he has provided Mellors & Kirk with all information concerning the provenance of the lot and has notified Mellors & Kirk in writing of any concerns expressed by third parties in relation to the age, attribution, authenticity, authorship, condition, date, origin, ownership or provenance of the lot or its export or import; (v) the particulars of the lot entered on the Mellors & Kirk sale instruction/goods receipt form are true and complete; (vi) he is unaware of any matter or allegation that would render any description given by Mellors & Kirk in relation to the lot inaccurate or misleading; (vii) where the lot has been moved to the European Community from a country that is not a member state of the European Community, the lot has been lawfully imported in to the European Community, the lot has been lawfully and permanently exported as required by the laws of any country in which it has been located, required declarations upon the export and import of the lot have been properly made and all duties and taxes on the export and import of the lot have been fully paid; (viii) he has or will pay all duties and taxes on the Sale Proceeds in respect of the lot and he has notified Mellors & Kirk in writing of any duties and/or taxes that are payable by Mellors & Kirk on his behalf in any country other than the country of sale; (ix) there are no restrictions, copyright or otherwise, relating to the lot (other than those imposed by law) and no restrictions on Mellors & Kirk’s rights to reproduce photographs or other images of the property other than those (if any) of which he has advised Mellors & Kirk in writing at the time of delivering the lot to Mellors & Kirk; and (x) the lot, if it amounts to electrical or mechanical goods or parts thereof, is in safe operating condition if reasonably used for the purpose it was designed and it is in working order and free from any defect not obvious on external inspection that could prove dangerous to human life or health other than in those respects (if any) of which he has advised Mellors & Kirk in writing at the time of delivering the lot to Mellors & Kirk.
(b) Notwithstanding any warranty given by the Vendor in this Condition 9(a): (i) Mellors & Kirk reserves the right to effect the testing of any electrical or mechanical goods or parts thereof, to make a charge payable by the Vendor for any such testing and to refuse to offer for sale any such goods or parts that is found not conform to all then applicable safety standards; and (ii) notwithstanding any such testing, all electronically operated lots sold at any Mellors & Kirk auction are deemed to be antiques and/or collectable items and therefore inherently dangerous.
(c) If Mellors & Kirk or the Buyer considers any of the warranties given in Condition 9(a) to be breached in any way, Mellors & Kirk and/or the Buyer may take legal action against the Vendor. The Vendor undertakes to fully indemnify Mellors & Kirk, its directors, officers, employees, agents and sub-contractors and the Buyer against any loss or damage they incur or suffer in consequence of any breach of any of the warranties given in Condition 9(a) or any other terms of the Conditions on the part of the Vendor.
10. Mellors & Kirk’s liability to Vendors
(a) Any representation or statement made by or on behalf of Mellors & Kirk, whether orally by any of their directors, officers, employees, agents or sub-contractors or printed in any Catalogue, advertisement brochure, commentary, list, report or valuation, concerning any aspect or quality of any lot, including age, attribution, authenticity, authorship, condition, date, origin, price, provenance or value is an expression of non-exhaustive opinion only, may be revised prior to the lot being offered for sale (including whilst the lot is on public view) and is not to be taken as being or implying any warranty or representation of fact by Mellors & Kirk. Neither Mellors & Kirk nor any of its directors, officers, employees, agents or sub-contractors shall be in any way liable for any errors or omissions in any such representations or statements, save for any representations made fraudulently.
(b) Without prejudice to Condition 11(f), and save insofar as it relates to any liability for death or personal injury resulting from Mellors & Kirk’s negligence (liability for which Mellors & Kirk in no way seeks to exclude or limit), Mellors & Kirk’s liability for any claim brought against Mellors & Kirk by any Vendor in respect of any lot shall be limited to the Sale Proceeds for that lot.
11. Prior to the sale
(a) All Vendors agree that Mellors & Kirk shall have absolute discretion as to: (i) the way in which goods 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 or illustrated in the Catalogue or any condition report; (iv) the date and place of any Mellors & Kirk auction; and (v) the manner in which any sale is carried out. Mellors & Kirk reserve the right to consult with and rely on any outside experts, consultants or restorers of its choice in relation to any lot and to carry out such other enquiries or tests in relation to the lot either before or after their sale as Mellors & Kirk may deem appropriate. However, this is a matter for Mellors & Kirk’s discretion and Mellors & Kirk shall be under no duty or obligation to carry out any such consultation, enquiries or tests in respect of any lot.
(b) Any estimate given by Mellors & Kirk of the selling price of any lot, whether any such estimate is made orally, in the Catalogue or otherwise: (i) is an expression of non-exhaustive opinion and intended only as a guide; (ii) should not be in any way relied upon as a statement that the estimated selling price is the price at which the lot will sell or its value for any other purpose; and (iii) may be revised from time to time in Mellors & Kirk’s absolute discretion. As any estimate can be subject to revision, it is advisable to consult Mellors & Kirk as to the estimated selling price of any lot nearer the time of the sale.
(c) If any Vendor chooses to withdraw any lot from sale after the later of: (i) the Vendor’s written agreement with Mellors & Kirk to sell the lot; and (ii) 12 weeks before the date of the auction of the lot, the Vendor will be liable to pay Mellors & Kirk a withdrawal fee calculated in accordance with Condition 11(e). If the Vendor withdraws the lot before that time, no withdrawal fee shall be payable by the Vendor to Mellors & Kirk.
(d) Mellors & Kirk may withdraw any lot from sale without any liability if: (i) Mellors & Kirk reasonably believe that there is any doubt as to its attribution or authenticity; (ii) it is established or alleged that any of the warranties given by the Vendor in Condition 9 are inaccurate in any way; (iii) the Vendor materially breaches any of the Conditions; (iv) the lots contains any endangered species for which a sales exemption under the Convention on International Trade in Endangered Species is required and such a sales exemption has not been granted by the day preceding the first day of the viewing of the sale; (v) Mellors & Kirk consider the lot to be of insufficient sale value; (vi) the lot suffers from loss or damage so that it is not in the state in which it was when Mellors & Kirk agreed to sell it; or (vii) the Mellors & Kirk auction at which it was proposed to be put on sale is postponed for any reason. If Mellors & Kirk become aware of any actual or alleged competing title claim or lien over any lot consigned for sale to Mellors & Kirk by any Vendor, Mellors & Kirk shall not release the lot to the Vendor until the title claim or lien has been resolved to Mellors & Kirk’s reasonable satisfaction.
(e) If any lot is withdrawn from sale by Mellors & Kirk for any reason other than any actual or alleged inaccuracy in any of the warranties given by the Vendor in Condition 9 or any material breach by the Vendor of any of the Conditions, the Vendor shall not be charged a withdrawal fee and, as long as there is no competing title claim or lien over the lot, the lot shall be returned to the Vendor at the Vendor’s expense. If, however, any lot is withdrawn from sale by Mellors & Kirk because of any actual or alleged inaccuracy in any of the warranties given by the Vendor in Condition 9 or any material breach by the Vendor of any of the Conditions or any lot is withdrawn by the Vendor after the applicable time set out in Condition 11(c), Mellors & Kirk is entitled to a fee of 15% of: (i) the reserve for the withdrawn lot; or (ii) if unreserved, Mellors & Kirk’s low presale estimate for the withdrawn lot at the time of its withdrawal, together with any applicable Expenses and any applicable V.A.T. thereon. Mellors & Kirk shall not be obliged to withdraw any lot or to return it to the Vendor unless the Vendor has made full payment to Mellors & Kirk of the applicable withdrawal fee, Expenses and VAT in pounds sterling and good cleared funds.
(f) Unless otherwise agreed in writing, Mellors & Kirk will, at the Vendor’s expense and on the terms set out in this Condition 11(f), bear the risk in and insure any lot consigned to it for the sole purpose of its sale (and not for any other purpose or reason) until such time as risk passes to the Buyer on sale of the lot or, if the lot remains unsold, upon its disposal in accordance with Condition 13(e). Mellors & Kirk shall charge the Vendor, and the Vendor agrees to pay, a sum in respect of such insurance at a premium of: (i) 1.25% of the Hammer Price if the lot is sold (in which case the Vendor acknowledges that Mellors & Kirk will deduct such a sum from the Hammer Price of the lot as an Expense); (ii) the reserve for the lot if the lot is unsold; (iii) the low presale estimate of the lot at the time of its delivery if the lot is unreserved or not offered for sale for any reason; or (iv) a reasonable estimate of the auction value of the lot at the date of its delivery if there is no low presale estimate for the lot. Lots will be insured whilst in the possession of Mellors & Kirk against the risks of fire, theft following forcible entry and water damage but not against accidental breakage, loss or damage however caused unless by the wilful misconduct or negligence of Mellors & Kirk. Should any loss or damage occur to any lot whilst risk in it is borne by Mellors & Kirk and for which Mellors & Kirk is liable, Mellors & Kirk shall not be liable to pay the Vendor any more than the applicable premium set out in this Condition 11(f), less any Vendor’s Commission, any applicable Expenses and any applicable V.A.T. thereon. Mellors & Kirk shall not be responsible or liable for the damage, loss, theft or destruction of any lot not so insured upon the vendors instructions, nor will Mellors & Kirk be responsible or liable for any loss or damage caused by: (i) any third party whom Mellors & Kirk have instructed to deal with the lot with the Vendor’s consent; (ii) changes in humidity or temperature; (iii) normal wear and tear, gradual deterioration or inherent defect; or (iv) errors in processing. Owing to the age of the majority of lots and the fragility of antique or other frames and casings, Mellors & Kirk will not insure against, and shall not be responsible or liable for, any loss or damage caused to any frame, casing, mounting or glass forming part of any lot.
(g) If the Vendor does not wish Mellors & Kirk to bear the risk of loss or damages cover in any lot delivered to Mellors & Kirk, the Vendor must agree this with Mellors & Kirk in writing at that time. In the event that the Vendor agrees this with Mellors & Kirk in respect of any lot, the Vendor will maintain insurance cover for the lot until risk in the lot passes to the Buyer on its sale. In such circumstances, the Vendor will: (i) promptly (and in any event no later than 7 days after delivery of the lot in question to Mellors & Kirk) provide Mellors & Kirk with a copy of the certificate of insurance for the lot; (ii) promptly (and in any event no later than 7 days after delivery of the lot in question to Mellors & Kirk) procure a waiver of subrogation by his insurer in a form satisfactory to Mellors & Kirk of all rights and claims that the insurer may have against Mellors & Kirk in connection with loss or damage in respect of the lot and provide Mellors & Kirk with a copy of such wavier; (iii) indemnify Mellors & Kirk against any claim for loss, damage or costs in respect of the lot however arising; (iv) immediately notify his insurers of the terms of such indemnity and shall himself note the interest of Mellors & Kirk as bailee in respect of the relevant insurance policy; (v) reimburse Mellors & Kirk on demand for any payments, costs or Expenses, including legal fees, that Mellors & Kirk incur as a result of any claim for loss, damage or costs in respect of the lot; and (vi) waive all rights and claims that he may have against Mellors & Kirk in connection with such loss or damage, other than in circumstances where the loss or damage was caused by the wilful misconduct or negligence of Mellors & Kirk.
12. At the sale
(a) All lots are offered for sale without reserve unless specific written instructions to the contrary are received and agreed to by Mellors & Kirk prior to the day of the sale. Any agreed reserve shall be: (i) the confidential minimum Hammer Price below which the lot will not be sold; (ii) no higher than Mellors & Kirk’s low presale estimate for the lot at the time of the relevant auction; and (iii) subject to 10% discretion. Where any lot is offered for sale subject to an agreed reserve, the auctioneer may open the bidding on the lot below its reserve by placing a bid on behalf of the Vendor and may continue to bid on behalf of the Vendor up to the amount of one bid below the reserve either by placing consecutive bids or by placing bids in response to other bidders, although the auctioneer will not indicate during the auction that he is making such bids on behalf of the Vendor. The auctioneer alone is authorised to bid on behalf of the Vendor for any lot offered subject to an agreed reserve or at the auctioneer’s discretion. Mellors & Kirk shall in no circumstances be liable if bids are not received for any lot at the level of its agreed reserve but shall be entitled, in its absolute discretion, to sell the lot below the reserve and pay the Vendor the Sale Proceeds that he would have received if the lot had sold at the reserve.
(b) The Vendor will not in person or through the agency of any other person except the auctioneer bid for his own property. If the Vendor should bid for his own property on his own behalf or instruct or permit any other person except the auctioneer to bid for his own property on his behalf, Mellors & Kirk may treat the Vendor as the successful bidder and, in such circumstances, the Vendor will: (i) not be entitled to the benefit of Condition 3 or any applicable reserve; and (ii) pay Mellors & Kirk a sum representing the total of the Vendor’s Commission, the Buyer’s Premium, any applicable Expenses and any applicable V.A.T. thereon and Mellors & Kirk shall be entitled to exercise a lien over the lot until full payment of that sum has been made to Mellors & Kirk in pounds sterling and good cleared funds.
13. After the sale
(a) Following the sale of any lot, the Vendor will be liable to pay Mellors & Kirk the Vendor’s Commission, any applicable Expenses and any applicable V.A.T thereon. The Vendor authorises Mellors & Kirk to deduct all such Vendor’s Commission, Expenses paid by the Vendor and V.A.T. from the Hammer Price and acknowledges the right of Mellors & Kirk to charge the Buyer and retain the Buyer’s Premium.
(b) Unless Mellors & Kirk have been notified by the Buyer of his intention to rescind the sale of any lot on the basis that the lot is a deliberate forgery, Mellors & Kirk will remit the Sale Proceeds to the Vendor, after deducting the Vendor’s Commission, insurance charges and any other applicable Expenses and any applicable V.A.T. thereon, 21 days after the sale of the lot, provided that Mellors & Kirk has been paid the Hammer Price, the Buyer’s Premium, any applicable Expenses and any applicable V.A.T. thereon in full by the Buyer in pounds sterling and good cleared funds. The Vendor should note that the Sale Proceeds payable to him are derived from the actual proceeds of sale received by Mellors & Kirk from the Buyer in respect of the lot in question and, as such, Mellors & Kirk are not under any obligation to remit the Sale Proceeds to the Vendor until such payment is received in full from the Buyer (although Mellors & Kirk reserves the right to do so). In the event that such payment is not received in full from the Buyer within 21 days of the sale of the lot in question, Mellors & Kirk will remit the Sale Proceeds to the Vendor 5 working days after such payment has been received in full from the Buyer. If such payment has not been received in full from the Buyer 30 days following the sale of the lot in question, Mellors & Kirk will endeavour to consult with the Vendor on the appropriate course of action to take to recover the amount due, notwithstanding that the Vendor authorises Mellors & Kirk to take such steps on the Seller’s behalf as Mellors & Kirk thinks necessary to attempt to recover monies due from the Buyer, including (without limitation) the right to charge the Buyer interest for late payment under Condition 8(h). The Vendor authorises Mellors & Kirk to retain such interest for Mellors & Kirk’s own account together with any interest that may be accrued on the deposit of any proceeds of sale in the client bank account of Mellors & Kirk.
(c) It shall not be incumbent upon Mellors & Kirk to pursue any Buyer in the matter of any amount(s) due, nor shall Mellors & Kirk be under any obligation to enforce payment by any Buyer or to undertake legal proceedings to recover such payment. The Vendor shall inform Mellors & Kirk of any action that the Vendor chooses to take against the Buyer to enforce payment of the amount due to the Vendor, notwithstanding that Mellors & Kirk has absolute discretion to take and enforce any of the rights or remedies set out in Condition 8(h), including (without limitation) the right to cancel the sale and return the lot in question to the Vendor. If the Buyer fails to pay the full amount due on any lot in pounds sterling and good cleared funds but Mellors & Kirk agree to remit to the Vendor an amount equal to the Sale Proceeds for that lot, ownership of the lot shall pass to Mellors & Kirk and, in such circumstances, Mellors & Kirk will have the benefit of all representations, warranties and indemnities given by the Vendor in respect of the lot in the Conditions.
(d) Where Mellors & Kirk considers that any lot is a deliberate forgery (and, in so doing, it shall be entitled to dispense with any of the requirements of Condition 3 in its absolute discretion), Mellors & Kirk is authorised to rescind the sale and refund to the Buyer any amount paid to Mellors & Kirk in respect of the lot in question and shall notify the Vendor of any such rescission. Within 7 days of the Vendor’s receipt of any such notification, the Vendor will: (i) return to Mellors & Kirk any Sale Proceeds already paid by Mellors & Kirk to the Vendor; and (ii) reimburse Mellors & Kirk for any Expenses incurred in connection with the rescinded sale. On receipt of all such sums, Mellors & Kirk shall return the lot in question to the Vendor. Mellors & Kirk shall be entitled to the Sale Proceeds of the lot in question if Mellors & Kirk cannot return that lot to the Vendor for any reason beyond Mellors & Kirk’s reasonable control.
(e) In the event of: (i) any reserved lot of a catalogue auction remaining unsold at the conclusion of the relevant auction and unless otherwise agreed in writing with Mellors & Kirk, the Vendor authorises Mellors & Kirk exclusively, until such time as the lot is removed by or on behalf of the vendor, to re-offer the lot without reserve in a subsequent general auction or auctions or to invite offers to sell the lot privately for a price that will result in a payment to the Vendor of not less than the Sale Proceeds to which the Vendor would have been entitled had the lot been sold at auction for a price equal to the reserve; (ii) any unreserved lot in a catalogue auction remaining unsold at the conclusion of the relevant auction and unless there is a written agreement to the contrary with Mellors & Kirk, the Vendor authorises Mellors & Kirk exclusively to re-offer the lot in a subsequent auction or auctions or to invite offers and sell the lot privately at its absolute discretion and, in the event that any such lot is re-offered at a subsequent auction, the Vendor agrees that the lot will be sold without reserve. If any reserved or unreserved lot of a catalogue auction does then not sell at a general auction, then the Vendor authorises Mellors & Kirk, unless there is a written agreement to the contrary, to dispose of the lot as it sees fit at the full expense of the Vendor. If any reserved lot in a general auction remains unsold at the conclusion of the relevant auction the Vendor authorises Mellors & Kirk, unless there is a written agreement to the contrary, to dispose of the lot without re-offering it at a further auction as an unreserved lot at the full expense of the Vendor and in the event of any unreserved lot in a general auction remaining unsold at the conclusion of the relevant auction then the Vendor authorises Mellors & Kirk, unless there is a written agreement to the contrary, to dispose of the lot as it sees fit at the full expense of the Vendor. If a post-auction sale of any lot is agreed, the Vendor’s obligations to Mellors & Kirk under the Conditions with respect to such lot are the same as if it had been sold at the auction and any reference in the Conditions to the date of the auction or sale shall be treated as being a reference to the date of the post-auction sale.
(f) Mellors & Kirk does not undertake the removal or delivery of any lots for Vendors but, if requested by any Vendor, will instruct a contractor to undertake such removal or delivery on behalf of the Vendor acting at all times as agent of the Vendor. As such, Mellors & Kirk disclaims any responsibility or liability for any loss or damage resulting from the use of any such contractor and any claim for any such loss or damage should be pursued directly and solely against the contractor responsible.
(g) Unless otherwise agreed in writing, the Vendor authorises Mellors & Kirk to dispose on the Vendor’s behalf of any lot: (i) that in the sole opinion of Mellors & Kirk, possesses no saleable value; or (ii) in accordance with Condition 13(e), and the Vendor hereby agrees to fully reimburse Mellors & Kirk for all reasonable costs and expenses incurred by Mellors & Kirk in connection with such disposal on the Vendor’s behalf.
Conditions of Business of application to both Buyers and Vendors
14. Data Protection
(a) In connection with the management and operation of Mellors & Kirk’s business and the marketing and supply of Mellors & Kirk’s services or as required by law, Mellors & Kirk may: (i) request that any Buyer, any Vendor and any bidder at any Mellors & Kirk auction, and if so requested that Buyer, that Vendor and that bidder agree to, provide in a form acceptable to Mellors & Kirk written confirmation of their name, permanent address, proof of identity and creditworthiness and any other requested personal data; or (ii) obtain personal data about any Buyer, any Vendor and any bidder at any Mellors & Kirk auction from third parties (e.g. credit information agencies). If any Buyer, any Vendor or any bidder at any Mellors & Kirk auction provides Mellors & Kirk with any personal data, he agrees that Mellors & Kirk may use it for the above purposes and Mellors & Kirk will not use it for any other purpose without the Buyer’s, the Vendor’s or the bidder’s prior consent (as applicable) or, in the case of any sensitive personal data as defined in the Data Protection Act 1998, prior explicit consent.
(b) New prospective Buyers and previous Buyers who have not made a purchase at any Mellors & Kirk’s auction within the last 2 years will be asked to supply a satisfactory recommendation of creditworthiness from an approved mutual acquaintance of Mellors & Kirk or such other source as Mellors & Kirk may require, along with 2 forms of identification in order to register to bid at any Mellors & Kirk auction. If any person is bidding on behalf of a Buyer known to Mellors & Kirk, that person will need to present to Mellors & Kirk a signed letter of authorisation and 2 forms of identification in order to register to bid on behalf of that Buyer at any Mellors & Kirk auction. Please note that previous Buyers who wish to spend an amount inconsistent with their previous buying patterns will also be asked to supply a new bank reference.
(c) All Buyers, Vendors and bidders at any Mellors & Kirk auction should note that, for security and evidential purposes, Mellors & Kirk’s premises are subject to video recording. Telephone calls to Mellors & Kirk, including (without limitation) any telephone bids or voicemail messages, may also be recorded and used for evidential purposes where, for example and without limitation, there is any dispute as to the bidding for or the Hammer Price of any particular lot sold.
15. Export and import restrictions
Mellors & Kirk and the Vendor make no representations or give any warranties as to whether any lot is subject to any export restrictions from the United Kingdom or any import restrictions from any other country or as to whether any embargoes exist in relation to any particular lot(s).
16. Introductory commissions
Mellors & Kirk reserves the right to pay out of any remuneration that it receives a fee to any third party introducing Buyers, Vendors or property for auction to Mellors & Kirk. Mellors & Kirk further reserves the absolute right, subject to applicable laws, to keep all details of any such payments confidential to itself.
17. Photographs, Illustrations, Images and Copyright
(a) Mellors & Kirk shall be entitled to photograph, illustrate or otherwise produce images in its Catalogues, promotional literature and on either its own or any third party’s website of any lot consigned for sale. The copyright in all such photographs, illustrations, images and written material produced by or for Mellors & Kirk in relation to any lot shall remain at all times the property of Mellors & Kirk, who shall have the right to use such photographs, illustrations, images and written material at any time and in whatever way it deems appropriate, whether or not in connection with the relevant auction. Any actual or prospective Buyer or Vendor warrants that he shall not use any such photographs, illustrations, images and/or written material of or pertaining to that lot without Mellors & Kirk’s prior written consent and each such Buyer or Vendor shall fully indemnify Mellors & Kirk on a continuing basis against all costs, claims, demands, expenses, losses, damages and liabilities of whatsoever nature arising out of, or in connection with, any breach by such Vendor or Buyer of the warranty given by him in this Condition 17(a).
(b) Mellors & Kirk and the Vendor make no representations and give no warranties as to whether any lot is subject to copyright or as to whether the Buyer of that lot will acquire any copyright or other reproduction rights in it.
18. Value Added Tax
Where the Conditions: (i) refer to any obligation for the Buyer or Vendor to make payment to Mellors & Kirk, the Buyer or Vendor (as applicable) will be liable to pay any VAT required by law or, if applicable, any amount in lieu of VAT; and (ii) give Mellors & Kirk a right to receive payment from the Buyer or the Vendor, such right shall include the right to receive any VAT due or, if applicable, any amount in due in lieu of VAT.
19. General
(a) The Conditions are not assignable by any Buyer of Vendor without Mellors & Kirk’s prior written consent. However, the Conditions shall be binding on any successors, permitted assigns, executors, administrators and representatives of any Buyer or Vendor.
(b) No act, omission or delay by Mellors & Kirk shall be deemed a waiver or release of any of its rights under the Conditions or otherwise.
(c) If any provision of the Conditions is found by any court with jurisdiction to be invalid, illegal or unenforceable for any reason, that provision shall be discounted and the remaining provisions shall continue to have full force and effect.
(d) The Conditions set out the entire agreement and understanding between Mellors & Kirk and any Buyer, Vendor or any bidder at any Mellors & Kirk auction with respect to the subject matter of the Conditions. It is agreed that, save in respect of liability for fraudulent misrepresentation or concealment, none of the aforementioned parties have entered into any contract pursuant to the Conditions in reliance on any representation, warranty or undertaking that is not expressly referred to in the Conditions. Mellors & Kirk in no way seeks to exclude or limit its liability for fraudulent misrepresentation or concealment.
(e) 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 based 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 Mellors & Kirk should be sent to The Auction House, Gregory Street, Nottingham NG7 2NL and quote the relevant sale date and either the Vendor’s reference number or the Buyer’s invoice number. Any notice that Mellors & Kirk sends to any Buyer or Vendor shall be addressed to the last address formally notified by him to Mellors & Kirk.
(f) The Contracts (Rights of Third Parties) Act 1999 is excluded by the Conditions and shall not apply to any contract made pursuant to them.
20. Law and jurisdiction
(a) The Conditions and all aspects or all matters, transactions or disputes to which they relate shall be governed by and construed in accordance with the laws of England. By bidding for any lot (whether present in person or by agent, by written bid, telephone or other means) or offering any lot for sale at any Mellors & Kirk auction, all actual or prospective Buyers and Vendors shall be deemed to have irrevocably submitted, for the benefit of Mellors & Kirk, to the exclusive jurisdiction of the English Courts to settle all disputes arising in connection with all aspects of all matters or transactions to which the Conditions relate or apply.
(b) All Buyers and Vendors irrevocably consent to service of process or any other documents in connection with any legal proceedings by personal service, delivery by mail, facsimile transmission or in any other manner permitted by the laws of England or the law of the place of service at the last address of the Buyer or Vendor known to Mellors & Kirk or any other usual address.
