1. CONDITIONS OF SALE
“Orchard Auctions Ltd”) carries on business with Bidders, Buyers and Sellers on the following Conditions of Sale, the Terms of Consignment for Sellers, the Information for Buyers and on such other terms, conditions and notices as may be referred to herein or that may be amended by way of notices posted in the saleroom or by way of announcements made by the Auctioneer.
The Auctioneer acts as agent only and disclaims any responsibility for default in relation to any of these Conditions of Business by Sellers or by Buyers.
In these Conditions:
“Auctioneer” means Orchard Auctions Ltd or its authorised auctioneer, as appropriate.
“Bidder” means the person considering, making or attempting to make a bid on a lot, in person or by any other means..
“Buyer” means the Bidder who makes the highest bid accepted by the Auctioneer.
“Buyer’s Premium” means payment of 20% on the Hammer Price of each lot purchased, payable to Orchard Auctions Ltd by the Buyer, on which VAT is chargeable. Live internet bids incur an additional 3% plus VAT.
“Deliberate Forgery” means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator and which at the date of the sale had a materially lesser value than it would have had if it had been in accordance with the catalogue description.
“Hammer Price” means the highest bid reached (at or above any reserve) and accepted by the Auctioneer when the Auctioneer brings down the hammer and the sale of the lot is final.
“Purchase Price” means the Hammer Price in respect of the lot sold, together with any Buyer’s Premium, Value Added Tax chargeable and any additional charges payable by a Buyer in accordance with these Conditions.
“Seller” means the legal owner of the lot offering it for sale, including their agents (other than Orchard Auctions Ltd), executors or personal representatives.
“Terms of Sale” means the stipulated terms and rates of commission on which Orchard Auctions Ltd accepts instructions from Sellers or their agents and which form part of these Conditions of Business.
The singular includes the plural and vice versa as appropriate.
Bidders are required to register their full name and address with the auctioneers before bidding whether by commission, telephone or otherwise and to supply any information or references required by Orchard Auctions Ltd. Proof of the Bidder’s identification (photo identification and proof of current address) will be required at the time of registration.
Bidders will be issued with a number card which must be shown every time they make a successful bid. If they fail to do so the Auctioneer may re-offer the lot.
Lots are sold subject to any announcements declarations alterations of description or other matters made by the Auctioneer prior to the invitation of bids.
The Bidder with the highest bid accepted by the Auctioneer conducting the sale shall be the Buyer at the Hammer Price. Any dispute shall be settled by the Auctioneer whose decision is final.
All lots (unless otherwise specified) are offered subject to a confidential reserve price agreed between Orchard Auctions Ltd and the Seller below which Orchard Auctions Ltd may not sell the lot. The reserve price shall be no higher than the low pre-sale estimate of the lot at the time of auction.
Lots will normally be offered for sale subject to a reserve to be agreed between Orchard Auctions Ltd and the Seller before the sale, that is, the minimum Hammer Price at which that lot may be sold. A reserve once set cannot be changed except with Orchard Auctions Ltd consent. Reserves must be reasonable and Orchard Auctions Ltd may decline to offer goods which in its opinion would be subject to an unreasonably high reserve. No reserve may exceed the lot’s final low pre-sale estimate. Lots with estimates of £50 or lower will be sold without reserve.
9.2. Orchard Auctions Ltd shall in no circumstances be liable if bids are not received to the level of the reserve. Orchard Auctions Ltd may at its discretion sell lots below the reserve provided Orchard Auctions Ltd pays the Seller the sale proceeds it would have received if the lot had sold for the reserve.
Orchard Auctions Ltd expressly reserves the right to bid on behalf of the Seller up to the amount of any reserve. The Auctioneer has discretion to refuse any bid from any Bidder, and to withdraw or re-offer any lot if the Auctioneer believes there has been an error or dispute.
Bidders are personally liable for their bid and jointly and severally liable with their principal if bidding as agent (whether or not Orchard Auctions Ltd has consented to the Bidder acting as agent).
Lots will only be invoiced to the name and address of the Bidder on the bid registration form and cannot be transferred to another name and address. Orchard Auctions Ltd can only accept payment for the lot from the registered Bidder.
Bidding increments shall be at the Auctioneer’s sole discretion
A sale contract is made directly between the Buyer and the Seller on the fall of the Auctioneer’s hammer, following which the Buyer becomes liable to pay the Purchase Price and no lot can be transferred by the Buyer.
The sale contract is made with the Auctioneer as agent for the Seller and payment shall only be made to the Auctioneer.
The Seller may not bid or instruct a third party to bid on its behalf for property that it consigns for sale.
OTHER TYPES OF BIDS
Orchard Auctions Ltd will, if so instructed by a Bidder clearly in writing and given to the Auctioneer only not less than 30 minutes prior to auction, execute bids on the Bidder’s behalf by commission bid. This service is free of charge and the Auctioneers do not accept any responsibility for commission bids given to porters.
A Bidder can register not less than one hour prior to the start of the auction to bid during the auction by room or online. Online bids attract an increased Buyers Premium.
Neither the Auctioneer nor its employees or agents shall be responsible for any failure to execute any instructions to bid for any reason, including but not limited to technical failures of phones or online connection.
Where applicable if two Bidders submit identical bids the Auctioneer will endeavour to ensure the first bid received has priority.
INSPECTION AND DESCRIPTION
Orchard Auctions Ltd’ knowledge in relation to any lot is dependent on information provided by the Seller of the lot. Orchard Auctions Ltd is not able to and does not carry out exhaustive due diligence on each lot.
Each lot offered for sale at Orchard Auctions Ltd is available for inspection by Bidders prior to the auction. Orchard Auctions Ltd accepts bids by any means on the basis that Bidders (and/or independent advisors acting on the Bidder’s behalf) have fully inspected the lot prior to bidding and have satisfied themselves prior to bidding as to both the condition of the lot and the accuracy of its description.
All lots are offered for sale in the condition they are in at the time of the auction with all faults imperfections and errors of description.
Sale catalogues, catalogue illustrations and condition reports are for information purposes only and do not necessarily convey the full information regarding any lot. Information provided to Bidders or their advisors prior to the sale in respect of any lot, whether written or oral and including any information in the sale catalogue or condition or other report, is a statement of opinion honestly held by Orchard Auctions Ltd and is not a statement of fact.
Orchard Auctions Ltd exercises reasonable care when making statements of opinion consistent with its role as an auction house, on the basis of information provided by the Seller, available scholarship, and the generally accepted opinions of relevant experts (at the time any such expert expressly states such opinion).
Orchard Auctions Ltd is not required to seek the opinion of any expert outside Orchard Auctions Ltd.
SELLER’S WARRANTIES AND CONDITIONS
The Seller represents and warrants to Orchard Auctions Ltd and to the Buyer that at all relevant times:-:
The Seller is the legal owner of the lot consigned to Orchard Auctions Ltd, or is authorised to sell the Property by the legal owner of it;
The Seller is able to and shall transfer possession to the Buyer good and marketable title to the lot free from any third party rights, claims or potential claims;
The Seller has provided Orchard Auctions Ltd with all relevant information concerning the lot that is known to the Seller and has notified Orchard Auctions Ltd in writing of any concerns expressed by third parties in relation to the ownership, condition, authenticity, attribution, or export or import of the lot;
The Seller is unaware of any matter or allegation which would render any description given to Orchard Auctions Ltd in relation to the lot inaccurate or misleading in any way;
The lot is not stolen;
The lot has been or will be lawfully imported and lawfully and permanently exported as required by the laws of any country in which it is or was located. Any required declarations upon the export and import of the lot have been or will be properly made and any duties and taxes on the export and import of the lot have been or will be paid by the Seller;
The Seller has paid or will pay any applicable taxes and/or duties that may be due on the Purchase Price of the lot;
The Seller is not aware of any restrictions, in copyright or otherwise, relating to the lot (other than those imposed by law) or any restrictions on Orchard Auctions Ltd rights to reproduce photographs or any images of the lot;
Unless the Seller notifies Orchard Auctions Ltd to the contrary, any electrical or mechanical goods or components are in a safe operating condition if reasonably used for the purpose for which they were designed, and are free from any defect not obvious on external inspection which could prove dangerous to human life or health. (have been PAC tested/)
Where Orchard Auctions Ltd reasonably believes that there is or may be a breach of any such representation or warranty, Orchard Auctions Ltd is entitled in its sole discretion to remove the lot from or rescind the sale.
Items for sale must be consigned to the saleroom by any deadline as stated by Orchard Auctions Ltd.
All costs and expenses incurred for packing, shipping and delivery to Orchard Auctions Ltd prior to sale are at the Seller’s sole expense.
The Seller agrees to indemnify Stroud Auctions, their respective servants, directors, officers and employees and the Buyer against any loss or damage resulting from any breach or alleged breach of any of the above representations or warranties.
The Seller’s representations, undertakings and indemnities continue after completion of the sale of the lot.
The Auctioneer may divide combine add or withdraw lots and make any catalogue alterations without notice or reason.
Lots may be included in a sale at Orchard Auctions Ltd’ sole discretion, including how the lot is described and Orchard Auctions Ltd illustrated in the sale catalogue and any marketing of the lot.
Any estimates given by Orchard Auctions Ltd are honestly held opinions only and are only an indication of the price a lot may achieve at the sale. The price achieved may be higher or lower and the Seller may not rely on Orchard Auctions Ltd estimates. Estimates may be revised at any time prior to sale at Orchard Auctions Ltd sole discretion.
The description of a lot is a matter of Orchard Auctions Ltd opinion and not of fact, and depends on several factors, including but not limited to the information provided by the Seller, the condition of the lot, and the generally accepted expert opinion regarding the lot at the time of cataloguing.
Orchard Auctions Ltd may at its sole discretion consult with or refer any lot to a third party for further research or additional expert opinion. Orchard Auctions Ltd is not obliged to consult any third party expert in relation to any lot.
Subject to the limitations and exclusions set out in these Conditions of Sale, Orchard Auctions Ltd will exercise reasonable care in compiling descriptions of lots and any other related reports, consistent with its role as an auction house.
Persons handling lots do so at their own risk and shall make good all loss and damage howsoever sustained. Any damage shall be assessed by the Auctioneer whose decision is final.
VALUE ADDED TAX
Value Added Tax on the Hammer Price is charged on any items subject to VAT and will be always be imposed on the Buyer’s Premium. Value Added Tax is charged at the appropriate rate in accordance with legislation in force at the date of sale and is payable by Buyers of relevant lots.
PAYMENT BY THE BUYER
Unless otherwise agreed with Orchard Auctions Ltd, the Buyer will pay to Orchard Auctions Ltd the Purchase Price immediately following the sale of any lot.
We accept payment by debit card or credit card (only up to £500 if not attending in person and there is an additional 3% transaction fee) bank transfer or cash.
As a consequence of the Money Laundering Regulations 2003, we are unable to accept cash payments for sums in excess of £10,000. This includes single payments amounting to this sum or multiple payments totalling £10,000
Any payments by the Buyer to Orchard Auctions Ltd may be applied by Orchard Auctions Ltd towards any sums owing from the Buyer to Orchard Auctions Ltd on any account whatever without regard to any directions of the Buyer, whether express or implied.
Title in a purchased lot will not pass to the Buyer until Orchard Auctions Ltd has received the Purchase Price of the lot in full and cleared funds.
Orchard Auctions Ltd will not release any lot to the Buyer for collection until payment of the Purchase Price and any additional charges to the Buyer. (as set out below in clause 7.2) is received.
PAYMENT TO SELLER.
After the sale of the Seller’s property, settlement of the Net Sale Price due to the Seller shall normally be made not later than 14 working days following the sale, subject always to Orchard Auctions Ltd receiving payment of the Purchase Price in full and cleared funds from the Buyer. In the event the Buyer has not paid for the lot, no settlement will be made to the Seller until payment is received.
Orchard Auctions Ltd may take the Seller’s instructions regarding recovery of payment, subject to the Conditions of Sale, but it is at Orchard Auctions Ltd sole discretion whether to take any action against a Buyer or seek any of the remedies as set out in the Conditions of Sale. Orchard Auctions Ltd is under no obligation to investigate the ability of any Bidder to pay for purchased lots or to pursue any Buyer for non-payment.
The Seller agrees to inform Orchard Auctions Ltd of any action which it chooses to take against a Buyer in order to enforce payment by the Buyer.
The Seller’s attention is drawn to the liability to reimburse the proceeds of sale to Orchard Auctions Ltd in the event any lot is deemed to be a Deliberate Forgery (as described in paragraph 10 of the Conditions of Sale).
LOSS AND DAMAGE OF PROPERTY.
Unless otherwise agreed in writing with the Seller as set out below, Orchard Auctions Ltd assumes liability for loss or damage to property consigned to it at the low pre-sale estimate commencing when the property is received by Orchard Auctions Ltd until title passes to the Buyer, in the event the property is sold. If the property is unsold, Orchard Auctions Ltd liability will cease when the property is collected by the Seller, or 10 days after the sale, whichever is earlier.
The liability assumed by Orchard Auctions Ltd for loss or damage to any lot shall be limited to the low pre-sale estimate, or to the Hammer Price if the lot has sold, or to the reserve if the lot was unsold.
The Seller must instruct Orchard Auctions Ltd in writing if it does not wish Orchard Auctions Ltd to assume liability for consigned property as set out above. The property will then remain entirely at the Seller’s risk unless and until the property passes to the Buyer or is collected by or on behalf of the Seller.
Sellers do not in any event have the right to claim for loss or damage to property under Orchard Auctions Ltd insurance policy.
UNSOLD AND WITHDRAWN ITEMS.
In the event a lot remains unsold at auction, the Seller authorises Orchard Auctions Ltd at its discretion to negotiate a sale by private treaty for a period of 6 days following the auction. The charges and expenses as set out in these Terms of Consignment will be payable by the Seller as if such lot had been sold at auction. Insofar as appropriate, the Conditions of Business are applicable to any such private treaty sale.
If an item is unsold it will be re-offered at a future auction at a reduced estimate and reserve, according to the auctioneer’s discretion, if the vendor has not instructed otherwise within the time specified. The Conditions of Business shall be applicable to any items re-consigned for sale. Where in Orchard Auctions Ltd opinion an item is unsaleable, the Seller must collect such items from the saleroom promptly on being so informed and in any event within 10 days of such notification.
Alternatively, unsold items may be collected by the Seller within 6 days of the sale in which the lot was entered, subject to payment by the Seller of any expenses due to Orchard Auctions Ltd.
Orchard Auctions Ltd may in its absolute discretion withdraw an item from sale if it reasonably believes that the warranties given by the Seller under the Conditions of Business in relation to that item may be breached, or if it becomes aware of an actual breach of the warranties in relation to that item. Orchard Auctions Ltd will notify the Seller if the Seller’s property is withdrawn from sale. The Seller must collect its property promptly on being so informed and in any event within 6 days of such notification.
Failure by the Seller to collect any item within the specified time will incur storage charges at a daily rate of £5/day (+VAT), such charges to accrue until the Seller collects the item.
A fee of 30% (+ VAT) of Orchard Auctions Ltd pre-sale mid estimate is chargeable on all lots withdrawn by the Seller from sale.
Unsold and withdrawn lots will not be released to the Seller until the fees and expenses under these Terms of Consignment are paid to Orchard Auctions Ltd by the Seller.
TRANSPORT AND STORAGE.
The Seller is solely responsible for packing and delivery of their property to Orchard Auctions Ltd prior to sale, and for collection in the event the property is unsold. Orchard Auctions Ltd may agree with the Seller to arrange for a third party shipper, at the Seller’s expense. Any expenses incurred by Orchard Auctions Ltd in relation to transport of Seller’s property will be chargeable to the Seller.
Orchard Auctions Ltd is not liable for any loss or damage to any property caused by any third party in relation to handling, packing, transport or storage.
In the event property has been delivered to Orchard Auctions Ltd saleroom without sufficient sale instructions and/or remains uncollected and/or un-consigned for sale, Orchard Auctions Ltd reserves the right to charge £5 (+ VAT) per lot per day for warehousing. Orchard Auctions Ltd will notify the Seller on record in writing at the Seller’s last known address. If the property is not removed within 1 month from such notification, Orchard Auctions Ltd reserves the right to sell the property and defray its expenses from any net proceeds of sale. Alternatively, Orchard Auctions Ltd may at the Seller’s expense give the property to the local authority or other body for disposal.
Unless otherwise agreed in writing with the Seller as set out below, Orchard Auctions Ltd assumes liability for loss or damage to property consigned to it at the low pre-sale estimate commencing when the property is received by Orchard Auctions Ltd until title passes to the Buyer, in the event the property is sold. If the property is unsold, Orchard Auctions Ltd liability will cease when the property is collected by the Seller, or 6 days after the sale, whichever is earlier.
FAILURE TO COLLECT PURCHASES
If the Buyer pays the Purchase Price and any related expenses but fails to collect a purchased lot within 6 days following the date of the relevant auction, the lot will be stored at the Buyer’s expense and risk, at Orchard Auctions Ltd or with a third party.
The Buyer shall be required to pay all additional expenses, including but not limited to handling and storage, incurred for failing to collect a purchased lot before the lot is released to the Buyer for collection.
Notwithstanding the conditions in paragraph 1, any lot which proves to be a Deliberate Forgery (as defined in paragraph 1) may be returned to Orchard Auctions Ltd providing the Buyer notifies Orchard Auctions Ltd within 7 days and returns it within 14 days of the relevant auction, and it is in the same condition as purchased, and is accompanied by particulars identifying it from the relevant catalogue description together with a written statement of defects. If Orchard Auctions Ltd is satisfied at its sole discretion that the above criteria have been met and that the lot is a Deliberate Forgery, the sale will be cancelled and Orchard Auctions Ltd shall refund the money paid by the Buyer for the lot including any Buyer’s Premium.
Paragraph 1 shall not apply if either: (1) the catalogue description reflected the generally accepted view of scholars and experts as at the date of sale, or the catalogue description indicated that there was a conflict of opinion; or (2) the only method of establishing at the date of sale that the item was a Deliberate Forgery would have been not then generally available or accepted, unreasonably expensive or impractical to use, or likely to have caused damage or loss of value (in Orchard Auctions Ltd reasonable opinion) of the lot; or (3) there has been no material loss in value of the lot from its value had it been in accordance with its description.
If the Buyer is not personally able to transfer a good and marketable title to Orchard Auctions Ltd, then the Buyer shall have no rights under this paragraph. The right of return provided by this paragraph 10 is additional to any right or remedy provided by law or by these Conditions of Sale.
Orchard Auctions Ltd may require the Buyer to obtain at the Buyer’s expense the reports of up to two independent and recognised experts in the field, mutually acceptable to Orchard Auctions Ltd and to the Buyer. Orchard Auctions Ltd shall not be bound by any reports produced by the Buyer, and reserves the right to seek additional expert advice at its own expense.
Orchard Auctions Ltd will request and use personal information from clients in connection with the business carried out by Orchard Auctions Ltd, including for the provision of auction-related services, client administration, marketing, the supply of client services, or as required by law, and may be disclosed to third parties for the purpose of fulfilling its obligations under these Conditions of Business. Such information may include the client’s name and contact details, proof of identity, and financial information and may be defined by law as “sensitive”.
Clients agree that Orchard Auctions Ltd may use their information for the purposes stated in clause 13.1. Orchard Auctions Ltd will not use sensitive information for any other purpose without the client’s express consent.
Some countries do not offer equivalent legal protection of personal information to that offered within the European Union. In fulfilling its obligations under these Conditions of Business, Orchard Auctions Ltd may disclose personal information to third parties in countries without equivalent protections. Orchard Auctions Ltd requires that any such third parties respect the privacy and confidentiality of its clients’ information and provide the same level of protection for clients’ information as provided within the European Union, wherever the third party may be located. By consenting to these Conditions of Business, clients agree to such disclosure.
Clients should note that telephone calls to Orchard Auctions Ltd relating to auction bids may be recorded.
THIRD PARTY LIABILITY
All members of the public on Orchard Auctions Ltd premises are there at their own risk and must note the layout of the building and any security arrangements.
Neither the Auctioneer nor its employees or agents shall incur liability for death or personal injury (except as required by law) or similarly for the safety of the property of persons visiting the premises.
LIMITATION OF LIABILITY AND EXCLUSIONS
Orchard Auctions Ltd is dependent on information from the Seller and is not responsible for any errors or omissions in the information provided by the Seller.
Orchard Auctions Ltd is not liable for any acts or omissions arising from the conduct of auctions or in relation to sale of any lot, whether negligent or not.
Orchard Auctions Ltd does not exclude or limit its liability in relation to fraudulent misrepresentation by Orchard Auctions Ltd. Subject to the foregoing, any claim against Orchard Auctions Ltd by the Seller is limited to the Net Sale Proceeds of the relevant lot and does not include any indirect or consequential losses of the Seller or Buyer.
Orchard Auctions Ltd reserves the right to alter these Conditions of Business at any time.
Orchard Auctions Ltd shall have the right in its absolute discretion to refuse admission to its premises or attendance at its auctions by any person.
Special terminology may be used in catalogue descriptions of particular types of goods, and the descriptions should be interpreted in accordance with any glossary appearing in the sale catalogue.
All images and other materials produced for the auction are the copyright of Orchard Auctions Ltd for use at Orchard Auctions Ltd discretion.
Any notice to any Buyer, Seller or Bidder may be given by first class mail to the last address of which Orchard Auctions Ltd has been formally notified and shall be deemed to have been received by the addressee 48 hours after posting. Any notice to Orchard Auctions Ltd by the Bidder, Buyer or Seller should be in writing.
Any extension or waiver of any provision of these Conditions of Business that may be granted to Bidders, Buyers or Sellers by Orchard Auctions Ltd for a specific lot shall not have any consequence on the enforceability of these Conditions and in all other respects these Conditions shall remain in full force and effect. Should any provision of these Conditions of Business be deemed unenforceable for any reason, the remaining provisions shall remain in full force and effect.
These Conditions of Business are not assignable by any Buyer or Seller without Orchard Auctions Ltd prior written consent, but are binding on the Buyer’s and the Seller’s respective successors, assigns and representatives. No act, omission or delay by Orchard Auctions Ltd shall be deemed a waiver or release of any of its rights.
The Contracts (Rights of Third Parties) Act 1999 is excluded by these Conditions and shall not apply to any contract made pursuant to them.
The Conditions of Sale, the Terms of Consignment for Sellers, the Information for Buyers, and any additional notices issued by Orchard Auctions Ltd form the entire agreement between the parties. It is agreed that no party has entered into any contract pursuant to these terms in reliance on any representation, warranty or undertaking not expressly referred to in these documents (save in respect of liability for fraudulent misrepresentation).
These Conditions of Business, including the Information for Buyers and the Terms of Consignment for Sellers, and all transactions or disputes to which they relate, are governed by the laws of England and Wales. The Buyer and the Seller agree that the Courts of England and Wales shall have exclusive jurisdiction in relation to any dispute arising.