Part 1 General
Section 1 Jurisdiction
These Conditions of Business (hereinafter referred to as the "Conditions") are formulated in accordance with the relevant laws, decrees, rules and regulations of the Hong Kong Special Administrative Region of the People’s Republic of China and the provisions of the Auction Articles of Marchance Auctioneers Limited (hereinafter referred to as "Marchance") and in light of international practice.
All parties participating in any auctions organized by the Company, including the Seller, the Bidder, the Buyer and all other related parties (including but not limited to the agents of the Seller, the Bidder and the Buyer) shall be deemed to accept in full and be bound by these Conditions of Business, and shall comply with them in such auctions, enjoy the rights and perform the obligations provided herein.
Any Bidder who bids in an auction organized by the Company, whether in person or by authorizing an agent to bid on his/her/its behalf, whether by raising the paddle, by absentee bids, by phone or by any other means, shall be deemed to have accepted these Conditions of Business in full.
Any dispute among the parties to auctions organized by the Company shall be settled in accordance with these Conditions of Business.
Section 2 Declaration
2.1 Unless as otherwise stated, we act as the Seller’s agent. The closing agreement for sale of a Lot shall be a contract between the Seller and the Buyer. These Conditions of Business and all other terms, conditions and notices contained in the catalogue, announced by the Auctioneer from time to time or provided at the saleroom shall constitute the provisions agreed among the Seller, the Buyer and/or the Company as auction agent.
2.2 The Company may amend these Conditions of Business for a particular auction by posting announcements at the auction site or making an announcement at such auction through an Auctioneer.
2.3 Bidders and Buyers participating in any auctions organized by the Company shall carefully read and be abided by these Conditions of Business; Bidders and Buyers shall read the provisions limiting the Company’s liabilities and disclaimers contained in these Conditions of Business carefully. Bidders and/or their agents have the responsibilities to review the original Lot in person, and bear legal liabilities for their acts of bidding the Lot.
2.4 Upon the Auctioneer confirms the Bidder’s bid by striking his/her hammer or in any other manner publicly indicating confirmation of the purchase in any auctions organized by the Company, the contract for sale regarding the Lot shall immediately enter into force and the Bidder shall become the Buyer of the Lot. The Company, the Seller and the Buyer shall acknowledge the sale of the Lot and its closing, enjoy the rights and assume the obligations provided by applicable laws and/or these Conditions of Business. Any party that fails to perform obligations shall bear his/her/its corresponding legal liabilities.
2.5 We, acting as agent of the Seller, shall assume no liability for any breach of contract or violation of these Conditions of Business by the Buyer or the Seller.
In case of the breach of contract by the Seller or the Buyer, the Company shall have the right to decide to disclose the other party’s name and address to the Seller or the Buyer at its own discretion so that the aggrieved party may claim for compensation for loss and damages arising from the breach of the other party through legal proceedings or otherwise. However, prior to the Company’s disclosure of such materials to the Seller or the Buyer, the Company shall take the reasonable steps to notify the party whose materials are to be disclosed.
2.6 If any abnormal or unforeseen event occurs at the auction site, the Company has the right to take emergency actions. If any dispute arises at the auction site, the Company has right to mediate and settle it.
Section 3 Definitions and Interpretation
The terms used in these conditions shall have following meanings:
3.1 "We/Us/Company" means Marchance Auctioneers Limited;
3.2 "Auction Date" means, in an auction held by the Company, the date on which the auctioneer concludes a contract for sale between a Seller and a Buyer by way of hammer striking or any other customary manner publicly confirming the sale;
3.3 “Auctioneer” means any person designated by the Company to moderate a particular auction;
3.4 “Bidder” means any person, company, body corporate or other organization who or which has duly completed the necessary registration formalities with our Company and acquired the right to bid; In these Conditions of Business, a Bidder shall include any of its agents unless as otherwise specified herein or required in a particular context;
3.5 “Buyer” means the Bidder whose bid or offer for a Lot is recognized by an Auctioneer as the highest bid for that Lot in an auction held by the Company, including the principal on behalf of which such Bidder acts;
3.6 “Seller” means any person, company, body corporate or other or organization that consigns (a) Lot(s) within the scope of these Conditions of Business to the Company for auction. In these Conditions of Business, a Seller shall include any of its agents unless as otherwise specified herein or required in a particular context;
3.7 “Lot” means any item consigned by a Seller to the Company for auction and so auctioned in any auction, in particular, any item numbered in any catalogue with certain description;
3.8 “Estimate” means the estimated selling price of a Lot written in the catalogue or other descriptive materials, excluding the Buyer’s Commission;
3.9 “Reserve” means the confidential minimum selling price for the Lot that the Seller has confirmed with the Company;
3.10 “Hammer Price” means the price for a Lot at which the Auctioneer decides to sell the Lot by striking the hammer or the agreed sale price in the post-auction sale;
3.11 “Proceeds of Sale” means the net amount due to the Seller, being the Hammer Price less the Buyer’s Commission, all expenses and other amounts payable to the Company by the Seller;
3.12 “Buyer’s Commission” means any commission that a Buyer shall pay to the Company calculated at the rate specified herein of the Hammer Price for the Lot that such Buyer purchases;
3.13 “Purchase Price” means the total amount payable by the Buyer for his/her/its purchase for each Lot, including the Hammer Price, the Buyer’s Commission, other Buyer’s Expenses and all Buyer’s Expenses arising from his/her/its failure to perform his/her/its obligations;
3.14 “Buyer’s Expenses” means costs and expenses in relation to sale of Lot paid by the Company, including but not limited to insurance policies, packaging, moving, storage, custody for the Lot, any expenses of testing, investigation, queries or authentication related to the Lot at the request of the Buyer or any additional costs and legal expenses to bring claims against a defaulting Buyer;
3.15 “Storage Fee” means the storage fee payable by the Buyer to the Company according to these Conditions of Business.
3.16 In these Conditions of Business, where the context requires, words denoting the singular shall include the plural and vice versa.
Part 2 Conditions Applicable to Buyer
Section 4 Bidder and Buyer
4.1 Every Bidder shall be deemed to act as principal unless Marchance has, before the date of the auction, acknowledged in writing that the Bidder is acting as agent on behalf of a disclosed principal.
4.2 If the Bidder is a natural person, before making any bid at the auction, he/she shall fill in and sign the registration documents with an identity document with photo issued by the government (such as resident identity card or passport), and provide proof of the current address (e.g. utility bill or bank statement).
4.3 If the Bidder is a company or other organization, before making any bid at the auction, it shall fill in and sign the registration documents and collect a paddle with its valid certificate of incorporation and proof of shareholding and legitimate authorization document.
4.4 The Company may request the Bidder to present the proof of bank details or other proof of financial conditions for payment purposes.
4.5 The Company can announce before the Auction Date the conditions and procedures of arranging paddle for the Bidder according to different auction conditions and auction methods etc., including but not limited to the qualification and conditions for the Bidder to arrange a paddle.
4.6 The Company solemnly reminds that a paddle is the only proof for the Bidder to participate in auction at the venue. The Bidder shall keep it properly. If it is lost, he/she/it shall immediately comply with the loss report formalities in a written form recognized by the Company.
All Bidders shall not lend or transfer his/her paddle to any other person(s). Otherwise, he/she shall be liable for the consequences associated with the use of his/her paddle for bidding or any other use. No matter if the person holding a paddle has been appointed by the Bidder or not, his or her bidding acts at auction are considered as having been made by the registered person himself/herself, and the Bidder shall bear the legal liabilities for the acts of the former, unless the Bidder himself/herself has already submitted a written report to the Company regarding the loss paddle.
4.7 Marchance has the right, at our complete and sole discretion, to refuse admission to the premises or participation in any auction by any Bidder and to reject any bid.
Section 5 Deposit
All Bidders will be required to place an auction deposit before a numbered paddle can be issued. The amount of deposit to be charged will be announced before the date of auction, and the Company has the right to waive the auction deposit. If the Bidder fails to buy the Lot and he/she does not owe the Company any sum, then that auction deposit shall be returned to the Bidder in full without interest within 10 working days after the end of the auction. If the Bidder succeeds in buying (a) Lot(s) at auction, the deposit will be used to offset the invoice value payable by that Bidder (as buyer) and the balance (if any) will be refunded at collection. The deposit will be forfeited if the buyer refuses to pay for the lot(s) purchased within payment period.
Section 6 Responsibilities of the Bidder and the Company in respect of the Lot
6.1 In accordance to the matters contained in Section 6.2 to 6.6 of the Conditions of Business and the special exemption contained in Section 7 of the Conditions of Business, the descriptions in the catalogue and in the condition reports are written in a reasonably prudent manner (and such should be in line with those terms of the Conditions of Business regarding the Company serving as Auction Agent) based on
(i) the information provided by the Seller to the Company;
(ii) academic and technical knowledge (if any); and
(iii) generally accepted opinions of the relevant experts.
6.2 The Company’s perception of all Lots partly relies on the information provided by the Seller, the Company is unable and will not carry out comprehensive inspection of all Lots. Bidders are aware of this and bear the responsibilities of inspecting and testing the original Lots so that Bidders will be satisfied with those Lots in which they may be interested.
6.3 All Lots for sale by the Company are available for viewing by Bidders. By bidding, Bidders and/or their agents are deemed to have carried out thorough examination of the Lots, and are deemed to be satisfied with the conditions of the Lots and the accuracy of their description.
6.4 If any part of Lot is damaged due to the viewing/examining process, Marchance has the right to demand for compensation from viewer/examiner equals to 50% of the sum of Lot’s low estimate and high estimate.
6.5 Bidders acknowledge that many lots are of an age and type which means that they are not in perfect condition. All Lots offered for sale in the condition they are in (“as is” condition) and without recourse at the time of the auction (whether or not Bidders attend the auction). Condition reports may be available to assist when lot(s) is/are being inspected before auction. Under certain circumstances, catalogue descriptions and condition reports may on occasions make reference to particular imperfections of a lot, but Bidders should note that lots may have other defects not expressly referred to in the catalogue or condition report. The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging; nor does a reference to particular defects imply the absence of others. References in the catalogue entry or the condition report to damage or restoration are for guidance only and should be evaluated by personal inspection by the bidder or a knowledgeable representative.
6.6 Regarding the information about the Lot provided to Bidders, including any forecast information (written or verbal), catalogues and other reports, commentaries or estimated values, such information are not statement of facts, but rather are statements of the opinion that the Company holds. Such information can be altered at the sole discretion of the Company from time to time.
6.7 If any purchased lot be stolen, mis-delivered or lost prior to delivery, Marchance shall not be liable for any amount in excess of that paid by the buyer. If the Lot is damaged during the storage period at the Company and such damage is certified causing significant depreciation of the Lot according to generally accepted opinions of relevant experts appointed by Marchance, Marchance shall not be liable for any amount in excess of the lot’s buyer’s premium, and Buyer shall not request for exemption from the legal liabilities of his/her bidding acts.
6.8 The Company or the Seller has not made any declaration or warranty as to whether any Lot is subject to any third party claim for copyright ownership or whether the Buyer has bought the copyright subsisted in any Lot.
Section 7 The Company’s Exemption and Restriction of Responsibilities to the Buyer
7.1 We will not provide any warranty as to the authenticity, value, tone, quality and flaw or defect of any of the Lots. The Bidders or their agents shall verify the authenticity and conditions of the Lots, and be responsible for all his/her bids associated with the auction.
7.2 Subject to the matters contained in Section 6 of the Conditions of Business and the rules in Section 7.5 of the Conditions of Business, the Company shall not:
(i) be responsible for any errors or omissions in the information provided by the Company to the Bidder verbally or in writing, no matter whether this is caused by negligence or other reasons, with the exception of provision contained in Section 6.1 of the Conditions of Business;
(ii) make any guarantee or warranty to the Bidder, excluding any implied warranty and rules other than the expressed warranty that the Seller has entrusted the Company to make to the Buyer (with the exception of those responsibilities that cannot be discharged according to the stipulations of laws);
(iii) be accountable to any Bidder for any actions or omissions of the Company regarding the auction or the sale of any Lot (no matter whether this is caused by negligence or other reasons).
7.3 Unless the Company owns the Lot to be sold, it shall not be responsible for any breach of the Conditions of Business by the Seller.
7.4 Without affecting Section 7.1 and 7.2 of these rules, any claim for compensation that the Bidder makes to the Company or the Seller shall be limited to the Hammer Price and the Buyer’s Commission of the Lot. Under no circumstances shall the Company and the Seller bear any consequential or indirect losses incurred by the Buyer.
7.5 Section 7 of the Conditions of Business does not exempt or restrict the liabilities of the Company regarding any misrepresentation with fraudulent element made by the Company or the Seller, nor the responsibilities of casualty or death caused by negligent acts or omissions of the Company or the Seller.
Section 8 Catalogue and Lot Descriptions
8.1 The Company shall prepare a catalogue of the Lot to briefly introduce the conditions of the Lot with words and/or pictures to facilitate the Bidder and Seller to participate in the auction held by the Company. The words and Estimate in the catalogue of the Lot, pictures, other images as well as public materials are only references for the Bidder and may be revised before auction. The Company provides no warranty or representation of any kind or nature in respect to merchantability, fitness for purpose, correctness of the catalogue or other description of the physical condition, size, quality, rarity, importance, medium, material, attribution, provenance, period, culture, source, origin, exhibitions, literature, historical significance, authenticity, value, tone or flawlessness of the Lot.
8.2 In case that the tone, color, graduation and shape of the Lot shown in the catalogue and/or any other illustrations, images and public materials differ from those of the original Lot due to printing, photography or other technical reasons, the original Lot shall take precedence. Any introduction and appraisal of any Lot made by the Company and its employees or its agents in any way (including the certificate, catalogue, slide show and news media) are only opinions for reference and do not constitute any guarantee for the Lot. The Company and its employees or its agents shall undertake no liability for any inaccuracy or omission in the aforesaid introduction or appraisal.
8.3 The Bidder and/or his/her/its agents shall have the responsibility to learn about the actual conditions of the Lot and shall be legally liable for his/her/its bid for a certain Lot. We strongly advise the Bidders to personally inspect the original Lot that they intend to bid by identification or other methods before Auction Date. Bidders shall judge whether the descriptions in the catalogue are accurate instead of placing reliance on the accuracy of our catalogue and other images and advertisements of the Lot.
Section 9 Absentee Bid, Telephone Bid and Online Bidding
9.1 Prospective Bidders are advised to attend the auction in person. If the Bidder is unable to do so, Marchance may accept the Bidder's written instruction of Absentee Bid or Telephone Bid to bid on their behalf.
9.2 Bidders shall acknowledge and understand that both Absentee Bid and Telephone Bid are free services provided by Marchance, neither Marchance nor its employees shall be liable to the Bidder for any negligence or default or breach of contract in doing so or for failure to do so.
9.3 If a Bidder who has appointed the Company to bid, the auction results and the related legal responsibilities shall be borne by the Bidder. The Bidder shall indemnify the Company from any claims or liabilities as a result of the act of the Company. If the Bidder indicates in the Absentee Bid Order that he/she/it bids by instant communication methods such as telephone, it shall fill in the instant communication method accurately and keep the instant communication instrument properly, during the period in which the Company is appointed to bid, the Bidder shall use that instant communication instrument himself/herself/itself. In the case when the instant communication instrument is lost or it cannot function properly or cannot function at all, the Bidder shall immediately use a written form recognized by the Company to change the instant communication method filled in the Absentee Bid Order.
During the period the Company is appointed to bid, it shall make appropriate efforts to contact the Bidder, the bidding information transmitted by that instant communication instrument (whether or n
