BUSINESS CONDITIONS AND RULES OF PROCEDURE
THE BIDDER
REGISTERING
1 - The bidder must be of age, previously register and have a bidding number;
1.1 – Valid registration requires bidder’s full name, address, telephone number, e-mail address, taxpayer number, his signature or his empowered representative’s signature, in which he acknowledges and accepts these Business Conditions and Rules of Procedure.
1.2 - P55 reserves the right to request the submission, and the right to make and file copies, of bidder’s valid original identification documents.
1.3 – P55 also reserves the right to refuse registration or ignore a bid to anyone who has not fulfilled the respective obligations including payment and withdrawal of one or more items in previous auctions.
1.4 – P55 considers that whoever submits its registration acts on its own behalf and can only act on behalf of a third party by rendering valid power of attorney for the purpose, up to eight (8) working days before the sale of the item.
1.5 - In case the power attorney is validly challenged by the alleged granter, the alleged representative and bidder shall be deemed as accepted.
BIDDING AND PURCHASE
2 - Whenever a potential bidder wishes to ensure the actual bidding of one or more items, he shall be advised to bid in person for it is regarded as the most adequate way to safeguard his interests.
2.1 – Still, P55 can bid on behalf of bidders who expressly request it signing the appropriate written form and under the conditions contained therein, provided that such document is received three hours before the start of the auction;
2.2 - The execution of purchase orders and telephone bidding services are provided as a confidential and free of charge courtesy;
2.3 – Neither P55, nor his staff members may in any event be liable for any errors or omissions that may eventually occur in the execution of such services.
3 - It is in the auctioneer’s power to decide, with total discretion, the amount in which the bids evolve in the bidding of each item.
3.1 - Nevertheless, the auctioneer should never exceed 10% of the previous bid, and no bid shall be less than € 10.
4 – P55 will deem to be the buyer the one that, personally or through a third party duly empowered for the act, bids and wins the bidding of an item for the highest price, without prejudice of exercise of the right of first refusal or option by official entities, regardless their rank, in accordance to the law.
4.1 -It is up to the auctioneer to decide, with full discretionary power, any doubt that may arise, including the withdrawal of an item from the auction or the reposition of an item in auction, at the price it had when the doubt arose.
5 – P55 will not act, under any circumstance, on its own behalf as a buyer of the items placed for auction.
PAYMENT AND WITHDRAWAL
6 - The buyer agrees to pay P55 the total amount due for the sale of the item;
6.1 – The total amount due for the sale comprises the amount of the winning bid plus a commission, which includes VAT, according to the Special Legal Regime for Item Sales at Auction, as follows: up to and including € 3.000 - 18,45%; in excess of € 3.000 up to and including € 20.000 - 14,76%; on the portion of the hammer in excess of € 20.000 - 12,30%.
6.2 - The buyer agrees to make the payment referred to in the previous paragraph and to withdraw the item within the five (5) business days following the date of purchase and may be required, at the time of auction, to make a deposit of 30% of its value if not covered by guarantee.
6.3 - After the aforesaid period of five (5) working days, P55 reserves the right to charge interest at the legal rate for commercial operations.
7 - Full ownership of the item will only be transferred to the buyer once paid the total amount of the sale in cash, certified cheque or wire transfer.
7.1 - In case payment is made by not certified cheque, the item will only be considered to have been paid after its good collection.
7.2 - Until transfer of title, in accordance with the preceding paragraph, the item remains the property of the seller.
7.3 - The withdrawal of any item will only be authorized after the total amount of the sale has been paid.
8 - The withdrawal and transportation of items is the sole responsibility of the buyer;
8.1 - Any assistance provided by P55 is a matter of courtesy, and cannot have as an effect liability of any kind;
8.2 - The indication of any company or person to do so also excludes any responsibility of P55.
9 - Once the item has been withdrawn, or the deadline of five (5) working days is met without the withdrawal of the item, the buyer will be liable for any loss or damage, including theft or robbery, which may occur.
9.1 - The buyer is also liable for any expenses related to the removal, storage and/or insurance that may occur.
9.2 - Any loss or damage, including theft or robbery, of an not collected item that occurs within the five (5) working days deadline referred to in paragraph 6.2, only grants the buyer the right to receive an amount equal to the one paid at the time for the item, and does not entitle him to any compensation, damages or interest.
10 - If the buyer fails to pay the full amount of the sale within twenty-one (21) days from the date of the item auction, P55 may, at any time, for itself and on behalf of the seller and without any possibility of the buyer to demand any compensation or reparation for this fact:
a) File a lawsuit to recover the full amount of the sale;
b) Notify the buyer of the cancellation of the sale, subject to the right of P55 to receive the commission owed by the buyer and the consequent possibility of legal action being brought for the collection of such debt.
10.1 - The above mentioned alternatives shall be understood without prejudice to any other rights that P55 may be entitled to, including the right to claim payment of interest and costs of removal, storage and / or insurance of the item that may occur.
11 - The buyer expressly authorizes P55 to photograph, publish, publicize and use, in any form and at all times, for commercial, cultural, academic or other purposes, related or not to the auction, the image and description of all items that have been acquired.
LIABILITY OF P55
12 – P55 is responsible for the accuracy of descriptions which should be understood as references to time, style, author, materials and condition of items in its catalogs, without prejudice of the possibility of such descriptions being publicly and verbally corrected until the moment of the sale.
12.1 - All items are sold in their current condition, and it is up to potential buyers to personally confirm, by prior examination, the accuracy of the description in the catalog, particularly with regard to possible restoration, faults or defects mentioned therein.
12.2 – In case of mechanical or working system, of any nature, items, when the description of the catalog does not explicitly mentions any "need to repair" or equivalent expression, the item’s mechanisms will be deemed to be functioning;
12.3 - In the cases referred to in the preceding paragraph, the liability of P55 is restricted to the mere operation of the mechanism, and not to its perfect functioning, and it ceases, in any case, at the time of withdrawal of the item by the buyer.
13 - Once a relevant discrepancy is verified involving a significant change in the value of the item between the description and its reality at the time of the auction, the buyer, and only him, may, for a period of three years from the date of auction, request the reimbursement of the full amount of the sale through the return of the item, in the condition it was at the time of the auction.
13.1 - The buyer will not be entitled to any compensation, damages or interests;
13.2 - It is the buyer’s burden of proof to demonstrate the existence of the relevant discrepancy between the description and the reality of the item, under the terms and for the purpose of the preceding articles and paragraphs.
14 – P55 may require the plaintiff buyer to file a written statement with an attached expert opinion signed by a recognized expert in domestic or international markets, without prejudice to its right, in any case, and at all time, to oppose to the expert opinion presented with another of equivalent value.
15 - The photographs or representations of the items in the catalog are intended solely for identification of the items subject to sale.
16 – P55 is not liable before the buyer for an item that, for reasons attributable to the seller or a third party, is subject to claims or grievances and / or seized, provisionally or permanently, by the competent authorities, regardless of the date in which the complaint, claim or seizure has been determined or enforced, and the nature or amount of any loss or damage that may arise there from, which shall be claimed by the buyer directly to the seller or third party that caused them.
17 – P55 is also not liable before the buyer of an item that is prohibited from leaving the country or subject to any encumbrance, charge or restriction, related to its holding, use, enjoyment or transmissibility, including under legislation protecting cultural heritage, regardless of the date of its classification, inventory or enrollment and of the nature or amount of any loss or damage that may arise to the buyer from such restriction, which must be claimed by the buyer directly to the seller or third party who caused it.
17.1 -Similarly, it is the buyer's responsibility to obtain any licenses and other formalities or restrictions on exports from Portugal to the country of intended destination by the purchaser, and licenses and other formalities or restrictions on importation into the country of intended destination by the purchaser.
18 - Except in case of willful misconduct, the liability of P55 before the buyer is, in any case, limited to the amount actually paid for the purchase of the item.
THE SELLERS
THE CONTRACT
19 - As a rule, P55 does not own any of the items that it places at auction nor, consequently, acts in its own name and as seller of the items, and likewise, does not purchase, under any circumstance, items aiming at their auctioning.
20 - The seller of an item and P55 are bound to each other from the moment a provision of services contract, hereinafter referred to as the “Contract”, is signed by both parties.
21 - The Contract must mandatorily state:
a) The full name of the seller and, if applicable, his representative;
b) The identification and description, though brief, of the item;
c) The minimum selling price of the item, as agreed by the parties;
d) The commission owed by the seller;
e) The fees regarding insurance and inventory of the item;
f) Any other fees agreed by the parties, in particular those regarding transportation, photographs, publicity, as well as other services expressly agreed upon;
g) The signature of the seller or his empowered representative, stating the knowledge and acceptance of the present business conditions and any specific conditions that may be applicable.
22 - By signing the Contract, the seller:
a) Guarantees to be the legitimate owner and possessor of the item and that it is free of any encumbrances, charges or restrictions, related to its holding, use, enjoyment or transmissibility, including classification, inventory or enrollment by any official entity, and that no proceedings have been initiated towards that end; in case during the Contract the seller is notified or becomes somehow aware of the initiation of a procedure towards classification, inventory or enrollment of the item or of any third party claims regarding such item, the seller shall immediately inform the P55;
b) Guarantees not to have omitted any facts or information that, if disclosed, are likely to change P55’s will to enter into the Contract or change the description of the item and / or the value attributed to it;
c) Undertakes the obligation to deliver the items or to keep them at the disposal of P55 and buyer as soon and whenever requested to do so.
22.1 - In case the seller is represented by a third party, the provisions set forth in the preceding article apply to the latter, with the due adaptations, and the third party further undertakes the obligation to present the documents that prove its relationship with the seller;
22.2 – P55 reserves the right to ask for documents that prove the lawful and legitimate ownership and possession of the item, including documents that prove its acquisition or title of possession by the seller;
22.3 – P55 also reserves the right, at all times, to perform or to order examinations and / or tests to the item in order to confirm or deny its description made ??in the Contract;
22.4 - If such examinations or tests reveal that the Contract is not materially correct, P55 may terminate or cancel it, and if the seller acted with willful misconduct or gross negligence in its negotiation and conclusion, it shall indemnify for the damages suffered by the latter, including image damage if the sale of the item has already been publicized;
22.5 – P55 may also terminate or cancel the Contract, without thereby entitling the seller to any compensation, in the event such tests or examinations are not conclusive but there are persistent grounds for to doubt the material correctness of the Contract.
23 - The seller expressly authorizes P55 to photograph, publicize, publish and use, in any form, for commercial, cultural, academic or other purposes, the image and description of all items subject of the Contract.
24 - The Contract may only be modified by mutual written agreement, without prejudice of the right of P55 to change the description and increase the minimum selling price of the item contained in the Agreement, in the catalog in which such item is included, as well as the right to freely establish the number of items to be included in each lot.
25 - In case the seller fails to comply with its obligations under the Contract, including, among others, the obligation to provide the item, the latter may notify the seller to remedy the breach within a reasonable and useful deadline.
25.1 - In case the non-compliance persists after said deadline, P55 has the right to terminate the Agreement with immediate effects, and still be entitled to claim from the seller, as a penalty clause, a sum equivalent to the commissions that would be payable by the seller and the buyer in the event of the sale of the item by the reservation value stipulated in the Contract, plus any other amounts owed by the seller under the Contract, without prejudice to any surplus damages.
LIABILITY
26 - Transportation to, as well as the deposit of the item in P55 facilities, and / or as its subsequent withdrawal and transportation in case of no sale, are the sole responsibility of the seller, and it shall be considered that any aid provided by P55 is a gesture of courtesy and cannot be the source of any liability.
26.1 - The indication of a company or person to do so also excludes any liability of P55.
27 - Any loss or damage, including theft and robbery, which may occur regarding an item while it is held by the seller, even after signing the Agreement, are the seller’s sole responsibility, the latter being obliged to compensate P55 and / or the buyer for all damages and losses arising there from.
28 - Without prejudice to the aforesaid cases where the liability has already been transferred to the buyer and where the liability was reverted to the seller, P55 can only be held liable for items that are deposited in its facilities after the respective Contract has been duly signed by the parties or in case the items were formally entrusted to for identification and evaluation purposes.
28.1 - The responsibility of P55 for any loss or damage, including theft and robbery, which may occur regarding the items that have been formally entrusted to it is covered by insurance for the reserve amount agreed.
PAYMENT
29 - The seller expressly authorizes P55 to deduct from the hammer price:
a) The commission due to it under the Contract, plus VAT at the statutory rate; and
b) The value of services and other payments due under the Contract, plus VAT at the statutory rate.
30 - In case of sale of the item, and provided that the buyer has already paid the full amount of the sale without any delay, P55 undertakes to pay the amount of the sale to the seller, deducted from the applicable commissions, service fees and taxes, within thirty (30) days after the date of the last session of the respective auction, or the date of effective, final and totally due payment by the buyer;
30.1 - The seller shall contact P55 for this purpose.
31 - In case the item sold is an original work of art, in the meaning of Art. 54 of the “Copyright and Related Rights Code” (in the version amended by Law no. 24/2006, of 30 June), the net amount receivable by the seller comprehends the amount due to the author or, if applicable, to the author’s heirs, as a resale right;
31.1 - The seller is obliged to retain such amount and pay it to the author or, if applicable, to its heirs, upon their request or upon the request of any persons or entity validly representing them;
31.2 - As an exception to the provisions of the preceding rules, in case the author, the author's heirs or whomever validly represents them requests such payment from P55 before payment has been made to the seller, the seller expressly authorizes P55 to deduct the amount due in respect of the resale right from the net amount which would be due under Article 29;
31.3 - The seller further authorizes P55 to deduct any amounts owed ??by the said seller as a buyer of other items from the net amount which would be due under Article 29, operating, to that extent, the applicable set-off;
31.4 - Once the deadline referred to in Article 30 has passed and P55 has not received the full amount of the sale from the buyer, it must inform the seller of that fact and that it took or intends to take legal action to recover the full amount of the sale or cancel the sale;
31.5 - If the reaction against the buyer needs the intervention of the seller, the latter should empower P55 to perform all the actions deemed necessary or appropriate.
31.6 - In case P55 succeeds, either judicially or extra-judicially, in recovering the credit over the buyer, it shall deliver the amount due to the seller within five (5) business days following the effective collection.
NO SALE OF AN ITEM
32 - If an item is not sold in auction, and within one (1) month after the last session of the auction, the seller undertakes to:
a) Pay P55 what is stipulated in the Contract, the seller is not entitled to any compensation or damages by reason of not having sold the item;
b) Withdraw the item.
32.1 - It is up to the seller to contact P55 to acknowledge the sale or no sale of the item, so that, in the latter case, it can timely fulfill the above obligations.
33 – P55 reserves the right to sell any item not sold in auction out of auction, for the minimum sale price agreed plus commission and tax due, at any time before actual withdrawal of the item by the seller, except if the seller, when entering into the Contract or at a later stage, has expressly indicated that it only intends to sell the item at auction.
34 - Once the period set forth in Article 32 has elapsed without the withdrawal of the item by the seller, title of ownership over the item shall be deemed reversed for all legal purposes, notwithstanding the fact that the seller shall become liable for any loss or damage, including theft and robbery, which may occur regarding the item;
34.1 - Consequently, P55 will not be liable for that eventuality;
34.2 -The seller will also be responsible for all item removal, storage and insurance costs that may be due.
35 - Ninety (90) days after completion of the period referred to in Article 32, and in case the seller has not voluntarily complied with the obligations established therein, P55 may place the item for auction again, without being subject to the minimum sale price agreed;
35.1 – P55 shall then be entitled to receive the commission and the fees set in the Agreement and also to deduct any amounts owed ??by the seller.
JURISDICTION
ART. 36 - For the resolution of any dispute between the parties concerning the interpretation or validity of the Contract, including the present business conditions, as well as its implementation and enforcement, the court of the district of Porto shall be exclusively competent.
FINAL NOTE: CITES - Convention on International Trade of Endangered Species of WILD Fauna and Flora
Each and every one of the items in this catalog incorporating materials of wild fauna and flora protected species has been previously certified in accordance with the provisions of CITES.
