The Auction Collective
CONDITIONS OF BUSINESS (“Conditions”)
These Conditions of Business govern the relationship between (i) you as the bidder and/or the buyer (“Bidder/Buyer” or “You” or “Yourself”) of a lot or lots (“Works”) offered by The Auction Collective (“TAC” or “We”), (ii) TAC acting as agent for the seller and providing services to the Bidder/Buyer, and (iii) the seller of the lot(s) consigned to TAC and being offered for sale (“Seller”).
b) TAC acts as the agent for the Seller and is authorised by the Seller to enter into a contract with the Bidder/Buyer to sell the Works.
c) These Conditions, which set out the terms on which TAC will contract with the Bidder/Buyer, and all other terms and conditions applicable to the sale of Works offered by TAC, form the entire agreement between the Bidder/Buyer and TAC in its capacity as agent for the Seller.
d) We have the right to amend these Conditions and shall inform You of any such amendments by posting notices on the TAC website, which is available at theauctioncollective.com/terms.
e) You should read these Conditions carefully before participating in our auction sales (“Auction”). By registering to bid with TAC, you acknowledge that you shall be bound by these Conditions.
1. Auction Items:
a) All Works have a description (cataloguing) and image that has been supplied by the Seller or TAC. For example:
Evening Fields, Alnmouth
Signed and dated (lower right)
Signed certificate of authenticity on reverse
Acrylic and pastel on board
33 x 63.5 cm.
Painted in 2017
b) TAC is reliant on the Seller of each of the Works to provide accurate information and accurate images of each of the Works (“Authorship Warranty”). We verify this information to the best of our ability, but we do not, carry out exhaustive due diligence on each of the Works. Bidder/Buyer acknowledge this fact and accept responsibility for carrying out inspections and investigations to satisfy Yourself as to any Work’s description, condition and appearance, before You place a bid.
c) All dimensions for Works are approximate measures of the items themselves and, unless otherwise stated, do not include additions such as frames or plinths. Images used in the promotion of the Auctions are for identification purposes only and cannot be relied on as precise indications of size or to convey full information as to the actual condition or appearance of the Work.
d) TAC offers the opportunity for Bidder/Buyer to inspect Works in person, if You are interested in the Work before committing to bid in the Auction. All Works in the Auction are assumed to be in good condition by TAC unless otherwise stated. We do our best to review the condition of each Work and only offer Works that, for their age and provenance, are recognised as being in good in a condition.
e) Each Bidder/Buyer is responsible for making full enquiry into the state of all Works, and by placing a bid at an Auction for a Work, you warrant that you are satisfied with the condition, accuracy of the description and appearance of each Work on which You wish to bid and have not relied on the information provided by the TAC.
2. Bidding and buying:
a) Each Bidder/Buyer wishing to bid in an Auction must register prior to bidding by providing the relevant information as requested by the TAC. This is to ensure the relevant due diligence checks can been carried out. However, TAC still has discretion to refuse participation in the auction. You are able to register in the following ways and must register no later than three hours before the relevant Auction, on the website at theauctioncollective.com/register.
b) Bidder/Buyer can bid in three ways either: in person, through absentee bids, or on the telephone.
c) By submitting either an absentee or telephone bid, the Bidder/Buyer accepts that by passing the bid to TAC it might not be executed by the auctioneer or TAC staff as a result of either technical or human error. Absentee and telephone bids must be placed no later than three hours ahead of the Auction unless arranged with TAC directly. TAC will never bid higher than instructed.
d) When telephone bidding, it is the responsibility of the telephone Bidder/Buyer to ensure that the telephone connection is reliable and clear. Telephone bids may be recorded.
e) By participating in the Auction, whether in person, by absentee bid, or on the telephone, each Bidder/Buyer represents and warrants that any bids placed by You, or on someone else’s behalf, are not the product of any collusive or other anti-competitive agreement and are otherwise compliant with the laws of England and Wales.
f) Employees and partners of the TAC may bid at the Auction. The auctioneer is only allowed to make personal bids in the Auction through absentee bids submitted no later than 24 hours before the auction begins.
g) It is the responsibility of the prospective Bidder/Buyer to ensure the correct details are entered when completing an online form.
3. The Auction
a) Works are offered subject to a reserve price, which is the confidential minimum selling price agreed between TAC and the Seller. The reserve price will not exceed the low pre-sale estimate at the time of the Auction.
b) The sale will be conducted in GBP and any international Bidder/Buyer will be responsible for all exchange rate differences that may occur at any time.
c) If a Work is not sold, the auctioneer will announce that it has been “unsold” “passed,” “withdrawn,” “returned to owner”, “bought-in” or other such phrases that indicate the item has not sold.
d) The auctioneer has discretion at any time to refuse any bid, withdraw any lot or re-offer a Work for sale (including after the fall of the hammer) if the auctioneer has reasonable belief that there has been an error or dispute during the sale of the Work. The auctioneer can then take any reasonable action to resolve the issue (i.e. reoffer the Work for sale). TAC shall have no liability for any such action taken by the auctioneer.
e) The auctioneer has discretion to advance the bid increments in levels that are, in the auctioneer’s opinion, appropriate for the pace of the auction. This may be larger or smaller than the standard increments. To maintain the confidential nature of the reserve on any Work, and to encourage bidding, the auctioneer may place one or more bids on behalf of the Seller up to the reserve. They may do this without indicating they are doing so, either by placing consecutive bids or bids in response to other bidders. They will never do this higher than the reserve Price.
f) Subject to the auctioneer’s reasonable discretion, the highest bidder accepted by the auctioneer will be the successful purchaser of the Work. The purposeful “fall of the hammer” as the auctioneer’s gavel strikes a surface, or a “vocal declaration”, will mark the contract of sale between the Bidder/Buyer and TAC acting as an agent for the Seller.
a) What is bid in the Auction is the final price (“Bid Price”) and the total sum that is due to be paid immediately by the Bidder/Buyer to TAC. There is no buyer’s commission and no payment fees are due from the Bidder/Buyer in calculating the Bid Price. The only extra cost may be storage charges that are due when the Work is not collected by the Bidder/Buyer at the time of the Auction and after payment had been made for the Bid Price.
b) A Bidder/Buyer is required to pay the Bid Price immediately in full following the Auction regardless of any intention and / or requirement to obtain an export or import license or other permit for such Work.
c) TAC accepts the following credit cards, Visa, MasterCard and Amex through its payment partner, nFiniti (see http://www.nfiniti.co) .
d) All card payments made to TAC will be processed by nFiniti and will be subject to nFiniti’s payment terms and conditions, a copy of which are available at http://www.nfiniti.co.
e) Title in the Work will not pass to the Bidder/Buyer until TAC has received the full payment of the Bid Price in cleared funds.
f) Only the named account holder of the winning bid paddle of the successful Bidder/Buyer can make payment of the Bid Price.
5. Collection of the Work
a) TAC is not obliged to release a Work to the Bidder/Buyer until payment of the Bid Price has been received and, in some instances, if required, until appropriate identification of the Bidder/Buyer for anti-money laundering purposes has been verified.
b) It is the responsibility of the winning Bidder/Buyer to arrange collection of the Work within 7 days of the Auction. The Bidder/Buyer accepts that the location of the Work may change within the 7 days and will contact TAC ahead of any collection arrangements. The Bidder/Buyer is responsible for all risk and insurance from the point in time that title in the Work passes to the Bidder/Buyer as set out in 4 (e) above.
c) TAC will use its reasonable endeavours to package and protect the Works before and after the Auction. But it is the responsibility of the Bidder/Buyer to ensure that this packaging is appropriate for the item, including but not limited to its transportation and storage. TAC will not accept any liability for damage caused to the Works to the fullest extent permitted by law.
6. Failure to pay, collect and cancellation of the sale
a) If the Bidder/Buyer pays the Bid Price but fails to collect the Work within 7 days of the relevant Auction, reasonable storage charges will be Incurred details of which are available from TAC on notice. Works will not be released until all storage charges have been paid in full.
b) If a Work is paid for but not collected within 30 days of the Auction, the sale of the Work may be cancelled and the Bid Price, less any storage costs incurred during the 30-day period. In this situation, title of the Work will be transferred back to the Seller.
c) Failure to pay the Bid Price immediately in accordance with these Conditions, may also result in the cancellation of the sale of the Work and TAC may offer the underbidders the opportunity to purchase the Work at a set price. The Work may also be auctioned again at a later date.
d) TAC has the right, but not the obligation, to rescind a sale without notice to the Bidder/Buyer if We have reasonable belief that there is doubt as to the Seller’s ownership of the Work.
7. Data Protection
a) In connection with the Auctions and associated services, TAC may ask Bidder/Buyer to provide personal data. This data will be used (i) to enable TAC to fulfil its contractual obligations in relation to any Works and any Auctions; (ii) to enforce Conditions, (iii) to carry out due diligence checks to comply with anti-money laundering and other relevant legislation; as well as identity and credit checks, and (iv) to implement and improve the management and operations of TAC of its Auctions and the sale of Works. By agreeing to these Conditions of Sale, you consent to the TAC’s use of your personal data for the purposes set out in this clause 7.
b) If you have expressly consented to TAC using your personal data to send you marketing or promotional materials, then TAC may send you unsolicited marketing emails. Should you no longer wish to receive such emails, please click on the link in the footer of the last email received, or email TAC at firstname.lastname@example.org.
c) In order to fulfil its contractual obligations to a Bidder/Buyer, TAC may need to share your personal data with third parties, e.g shippers, credit agencies and partners collaborating on the auction . By agreeing to these conditions, you expressly consent to such disclosure of your personal data.
8. Limitation of Liability
a) The total liability of TAC in relation to any breach of these Conditions shall be limited to the Bid Price paid by the Bidder / Buyer or £1,000 whichever is lower.
b) Neither TAC, its directors, employees or agents, or the Seller:
a. is liable Buyer /Bidder for any errors or omissions, whether orally or in writing, in information provided to prospective buyers by TAC;
b. accept responsibility to any Buyer /Bidder in respect of acts or omissions, whether negligent or otherwise, in connection with the conduct of the Auction or for any other matter relating to the Auction of any Work.
c) All warranties express or implied, including the Authorship Warranty and including any warranty of satisfactory quality and fitness for purpose, are specifically excluded by TAC, its directors, employees or agents and the Seller to the fullest extent permitted by law.
d) Neither TAC, its its directors, employees or agents, or the Seller are liable to the Buyer/Bidder for any loss or damage beyond the refund of the Bid Price, whether such loss or damage is characterized as direct, indirect, special, incidental or consequential.
e) No provision in these Conditions shall be deemed to exclude or limit the liability of TAC to the Buyer /Bidder in respect of any fraud or fraudulent misrepresentation made by TAC or in respect of death or personal injury caused by our negligent acts or omissions.
a) The copyright in all images, illustrations and written materials produced by or for TAC or the Seller, relating to any Works at Auction (including any logos and images) shall remain the property of TAC, or the Sellers and such images and materials may not be used by the Bidder/Buyer or any other party without the relevant party’s prior written consent.
a) A waiver of any right or remedy under these Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
b) A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
c) Any notice given in connection with these Conditions shall be in writing and emailed, to the address that the Bidder/Buyer included when signing up to use the services of TAC. TAC’s email address for the purpose of this clause is email@example.com.
d). If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
e) If any provision or part-provision of these Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
f) Except for the Seller or nFiniti, a person who is not a party to these Conditions, shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any term of these Conditions. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
g) Nothing in these Conditions will be construed to create a partnership, joint venture or agency relationship between the parties.
h) No party will be liable for delay or failure in performing obligations if the delay or failure is caused by circumstances beyond its reasonable control, including but not limited to viruses, communication breakdowns, bank delays, bank errors, or government action.
i) These Conditions, including any dispute arising out of or in connection with it, is governed by English law and each party submits to the exclusive jurisdiction of the English courts.