Mulberry Bank Auctions Limited
Term and Conditions of Business
These are the terms and conditions of business of Mulberry Bank Auctions Limited and govern its contractual relationship with bidders, buyers, sellers and any person dealing with it or otherwise present in its auction rooms prior to or in connection with a sale or otherwise to the exclusion of all other terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms:
“Auctioneer” means Mulberry Bank Auctions Limited, incorporated under the Companies Acts (Company Number SC393175) and having its Registered Office at Abercorn House, 79 Renfrew Road, Paisley PA3 4DA or its authorised auctioneer as appropriate;
“Business Day” means a day on which clearing banks in Glasgow are open for business;
“Buyer” means the person who makes the highest bid or offer accepted by the Auctioneer and includes such person’s principal when bidding as agent;
“Terms” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Auctioneer and You, subject to any additional notices and terms printed in the Auctioneer’s sale catalogues or otherwise announced or displayed by the Auctioneer;
“Writing” and any similar expression, includes facsimile transmission but not electronic mail or other forms of electronic communication;
“You”, “Your” and any similar expression refer to any person dealing with the Auctioneer, whether as bidder, buyer, seller or otherwise present in the Auctioneer’s auction room prior to or in connection with a sale.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2.1 Bidders shall register their particulars with the Auctioneer prior to bidding at an auction, and if requested shall provide banking or other suitable references.
2.2 The highest bid accepted by the Auctioneer shall be the buyer at the hammer price. Any dispute about a bid shall be settled at the Auctioneer’s absolute discretion.
2.3 All bidders, unless otherwise agreed with the Auctioneer in advance, will be deemed to be buying as principals.
2.4 Once made and accepted by the Auctioneer, no bid may be withdrawn.
2.5 The Auctioneer’s right to bid on behalf of the seller is expressly reserved up to the amount of any reserve and the right to refuse any bid is also reserved.
2.6 Bidding increments shall be at the Auctioneer’s sole discretion.
2.7 While pre-sale bids can be arranged, prospective buyers are strongly advised to attend the auction. You are always responsible for any decision to bid for a particular lot and it shall be assumed that You have carefully inspected and satisfied Yourself as to the condition of a particular lot. If so instructed, the Auctioneer may bid on Your behalf but neither the Auctioneer nor any of its employees shall be responsible for any failure to do so. Where two or more pre-sale bids at the same level are recorded, the Auctioneer reserves the right in its absolute discretion to prefer the first recorded bid.
2.8 All pre-sale bids require to be received by the Auctioneer prior to the commencement of the relevant sale. Telephone bids, must however be received by 5pm on the day prior to the sale.
Payment & Charges
2.9 The Buyer shall pay the hammer price together with a premium thereon to the Auctioneer. In all sales the premium is 17.5% up to £50,000 and 15% thereafter.
2.10 VAT is charged on the premium at the rate imposed by law at the date of sale. VAT is not normally payable on the hammer price nor on the premium for books bought at auction. If VAT is imposed by law on the hammer price of an item, this will be highlighted in the relevant catalogue and VAT shall be payable in addition.
2.11 The symbol † Auctions indicates works which may be subject to Droit de Suite or Artist’s Resale Right. The Auctioneer is required to collect a royalty payment for all qualifying works of art when the artist is still living, and this will be charged to the Buyer on the hammer price and in addition to the Buyer’s premium. It will not apply to works where the hammer price is less than 1000 euros. The charge for works of art at and above 1000 euros and below 50,000 euros is 4%. Charges on items selling above this price are calculated on a sliding scale which will be provided on request from the Auctioneer. No handling costs or additional fees are retained by the Auctioneer. Resale royalties are not subject to VAT. The sterling amount of the royalty payment is calculated at the relevant rate of exchange at the European Central Bank on the date of sale as determined by the Auctioneer.
2.12 Payments for goods bought at auction shall be made within 3 Business Days of the relevant auction or sale.
2.13 Payments may be made by cash, Switch or Debit Cards and Visa and Mastercard. Payment by credit card will be subject to a surcharge of 3% (plus VAT). The Auctioneer does not accept American Express. Cheques are accepted for payment if accompanied by a cheque guarantee card with goods only being released once the cheque has cleared.
2.14 All bids made through the saleroom.com will be subject to a further 3% charge on the hammer price.
2.15 All sums due to the Auctioneer by You must be settled prior to bidding at a future auction and the Auctioneer reserves the right to reject or ignore bids by You or Your agent until such sums have been paid in full.
2.16 Title to any lots purchased shall not pass to You until You have made payment in full and until then no item can be removed from the Auctioneer’s premises.
Collection of Lots
2.17 Subject to clause 2.15, You shall at Your own risk and expense take away all lots purchased and paid for by You not later than 1 week following the date of the relevant auction. After this time You will be liable for any removal, storage or other associated charges incurred by the Auctioneer in respect of the lot.
2.18 It is Your responsibility to find out about collection and delivery arrangements.
Non payment or failure to collect purchases
2.19 If any lot is not paid for in full and taken away in accordance with these Terms, or if there is any other breach of these Terms, the Auctioneer, as agent for the seller and on their behalf, shall at its absolute discretion and without prejudice to any other rights it may have, be entitled to exercise one or more of the following remedies:
2.19.1 to proceed against You for damages for breach of contract;
2.19.2 to rescind the sale of that lot and any other bought by You from the Auctioneer;
2.19.3 to resell the lot (by auction or private treaty) in which case You will be liable for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs). Any surplus arising shall belong to the seller;
2.19.4 to remove, store and insure the lot at Your expense, either at the Auctioneer’s premises or elsewhere;
2.19.5 to charge interest on the total amount due to the extent it remains unpaid for more than 3 Business Days after the sale at the rate of 5% above the Bank of England’s base rate applying from time to time for the period from the due date for payment until payment in full;
2.19.6 to apply any proceeds of sale from other lots due to You, whether from past or future sales, towards the settlement of any amount due to the Auctioneer, or to exercise a lien (the right to retain possession of) any of Your property in the Auctioneer’s possession for any purpose until the sum due is paid in full.
2.20 The Auctioneer shall, as agent for the seller and on their behalf, enforce out any of the remedies stated in Clause 2.18 as far as is reasonable to make appropriate recovery in respect of any breach of these Terms.
Condition and description of Lots
2.21 Whilst the Auctioneer seeks to describe lots accurately, it may be impractical to carry out extensive inspection of each lot. You (and any independent experts on Your behalf) are given ample opportunity to view and inspect items before sale, and must satisfy Yourself as to the accuracy of any description applied to a lot. You are deemed to accept that various aspects of the descriptions can involve matters of opinion, such as authorship, age, provenance, origin, date, condition and estimated selling price. The Auctioneer undertakes that any such opinion shall be honestly and reasonably held and accepts liability for opinions given negligently or fraudulently subject to these Terms. Subject to the foregoing, neither the Auctioneer nor its employees nor the seller of any lot accepts liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory are hereby excluded.
2.22 No warranty is given by the Auctioneer regarding the operating or safety condition of any mechanical or electrical items.
2.23 Any lot which proves to be a deliberate forgery may be returned to the Auctioneer within 21 days of the relevant auction provided that it is in the same condition as when bought. If the Auctioneer is satisfied from the evidence presented by You that the lot is a deliberate forgery, the Auctioneer shall refund the price paid by You for the lot including any buyer’s premium. The Auctioneer shall not have any liability for any consequential loss suffered by You (whether as buyer or seller or otherwise) as a result of the lot being a deliberate forgery.
3.1 The Auctioneer acts as agent only and accordingly shall not have any liability as principal to You as buyer, seller or otherwise in respect of accounting for the price of any lot save to the extent that payment has been received.
3.2 You, as seller, are deemed to warrant to the Auctioneer that:
3.2.1 You are the true owner of the property consigned or is properly authorised by the true owner to consign it for sale and are able to transfer ownership free from any third party claims;
3.2.2 the information which You supply to the Auctioneer in connection with any lot is to the best of Your knowledge, information and belief, accurate.
3.3 You, as seller, are deemed to grant the Auctioneer the absolute right to photograph and illustrate any lot and to use such photographs and illustrations as it may see fit.
3.4 You, as seller, shall indemnify the Auctioneer on demand against any claim in respect of any goods sold on Your behalf, as seller.
Procedure at Auction
3.5 No bid will be accepted by the Auctioneer by You or on Your behalf as seller of a lot which You have consigned to auction.
3.6 The Auctioneer shall pay the sale proceeds to You, the seller, not later than 28 days after the auction, provided the purchase price has been received in full.
3.7 If for any reason the purchase price has not been received within such 28 day period, the Auctioneer shall re-offer the lot in the next available auction on Your behalf, as seller.
Standard Seller fees (subject to VAT)
3.8 Unless otherwise agreed with the Auctioneer prior to auction, the following charges shall be paid by You as seller (and may be deducted by the Auctioneer from any sums to be paid to You):
3.8.1 Commission – 15% on the hammer price;
3.8.2 Lotting fee (per lot) – £5 (which includes photography and entry in the printed and online catalogues);
3.8.3 Optional accidental Loss and damage warranty – 1.5% of the hammer price, or for unsold and withdrawn lots on the lower estimate;
3.8.4 Withdrawal fee (per lot) – If You wish to withdraw a catalogued lot, a withdrawal fee will apply of £20;
together with, in addition, VAT thereon.
Estimates or reserves
3.9 All estimates are determined and decided by the Auctioneer at its discretion.
3.10 All goods are sold without reserve unless otherwise agreed with You, the seller, prior to auction. The Auctioneer has a 10% discretion on any reserve unless otherwise agreed with You, the seller.
3.11 The Auctioneer shall have no responsibility for any loss or damage to any goods or for their unauthorised removal or theft unless arising from the direct negligence of the Auctioneer or its employees. Whilst items remain on the Auctioneer’s premises, with the Auctioneer’s consent, and in its custody, they are insured against fire, theft following forcible entry and water damage and the Auctioneer’s liability to You shall not exceed the amount received by it in respect of Your item from its insurers, if any. Notwithstanding any seller who has opted to pay the additional accidental loss and damage warranty charge (see 3.8.3) which covers You for all damage or loss up to the amount received by the Auctioneer in respect of Your item from its insurers.
3.12 If a claim is made by You for the complete physical loss of an item and the Auctioneer pays sums to you in settlement of Your claim, you agree that the Auctioneer shall take full legal title to such item.
Unsold or Withdrawn Lots
3.13 If a lot is unsold at any auction, it must be collected by You, the seller, from the Auctioneer’s premises within 7 days of the date of such auction, failing which, the Auctioneer shall be entitled to sell such goods and recover from the price realised all costs and charges incurred by the Auctioneer. Any reserve which may have been attached to such lots will no longer apply.
3.14 Any withdrawn lots must be removed from the Auctioneer’s premises by You, as seller, and at Your expense within 3 Business Days of instructing the Auctioneer to withdraw the lot. Any failure to remove lots will result in You, as seller, being charged for any removal, storage or other associated charges incurred by the Auctioneer.
Third Party Liability
4.1 You are on the Auctioneer’s premises at Your own risk and must make Yourself aware of the lay-out and security arrangements in the building. Accordingly neither the Auctioneer nor its employees shall incur liability for death or personal injury (except as required by law as a result of the Auctioneer’s negligence). All personal possessions and property brought to the Auctioneer’s premises are at Your risk.
4.2 The Auctioneer normally acts as agent only and shall not have any responsibility for, or liability as a consequence of, default by buyers or sellers to You.
4.3 The Auctioneer has discretion at any time to refuse any bid, withdraw any lot or re-offer a lot for sale if it believes there may be error or dispute and take such further action as it reasonably thinks fit.
4.4 The Auctioneer has the right, at its discretion, to refuse admission to its premises or attendance at its auctions by any person.
4.5 You shall provide to the Auctioneer such evidence of identification as it may require upon request to do so.
4.6 The Auctioneer will take all reasonable precautions to keep your personal details secure, but unless the Auctioneer is negligent, the Auctioneer will not be liable for unauthorised access to information supplied by you.
4.7 Any notice to You may be given by first class mail, in which case it shall be deemed to have been received by the addressee 48 hours after posting.
4.8 If the Auctioneer fails or delays to exercise a right under these Terms, it shall not be deemed to have waived that right. If the Auctioneer waives any right under these Terms, it shall not be deemed to have waived its rights in relation to a subsequent breach of the same or any other provision of these Terms.
4.9 Any pre- or post- auction sales of lots by the Auctioneer shall incorporate these Terms as if sold at auction.
4.10 These Terms shall be governed by and construed in accordance with the Laws of Scotland. The Auctioneer and You irrevocably submit to the non-exclusive jurisdiction of the Scottish Courts as regards any claim, dispute or matter arising out of or in relation to these Terms.
4.11 No variation to these Terms shall be binding unless agreed in Writing between the Auctioneer and You.
4.12 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.