The Auction Collective
CONDITIONS OF BUSINESS (“Conditions”)
Introduction:
a) These Conditions of Business govern the relationship between (i) you (“You”, “Your” or “Yourself”) as a user of the website, marketplace and services (“Platform” or “Services”) offered by The Auction Collective (“TAC” or “We”), to either bid, buy (“Bidder/Buyer” or “Bidders/Buyers”) or sell (“Seller” or “Sellers”) items (“Item” or “Items”), (ii) TAC acting as provider of the services, and (iii) other users (all collectively “Users” and individually “User”) of TAC services.
b) TAC provides online and offline Services for Users to bid for, buy and sell items via auction as well as buy and sell via standard buy now retail commerce (“Buy Now”).
c) TAC do not own, take title to, or sell the Items listed or sold in connection with our Services and Platform. TAC provides a service to Users to help them sell and buy Items. All items marketed for sale are sold directly from the Seller to the Buyer. It is the Seller’s responsibility to transfer the legal ownership of any sold Items. It is Sellers’ and Buyers’ responsibility to pay any applicable taxes, invoices, costs and expenses associated with the sale or purchase of the Items.
account for any applicable taxes or invoices as required by the Buyer and local laws, as well as the transfer of legal ownership of any sold Items.
d) These Conditions, which set out the terms on which TAC will contract with Users, and all other terms and conditions applicable to the sale of Items offered by TAC, form the entire agreement between the Users and TAC in its capacity as provider of services.
e) 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.
f) You should read these Conditions carefully before using any online or offline Services provided by TAC. By participating in services provided by TAC, you acknowledge that you shall be bound by these Conditions and agree to abide by The Auction Collective Code of Conduct, details of which can be found at https://theauctioncollective.com/code-of-conduct
g) These Conditions are subject to any specific terms and conditions governing the sale of particular items (therefore, please refer to such terms and condition, which, if there are any, are available on the Platform).
h) Unless expressly agreed and stated in writing to the contrary, if there is any conflict or ambiguity between any of the terms contained within these Conditions, and any specific terms and conditions governing the sale of particular items as agreed between you and us prior to the sale of particular items, the terms of any formally and properly executed agreement between you and us shall prevail. Where no formally and properly executed agreement exists, the terms of these Conditions shall prevail.
1. Items and Event Listings
a) All Items have a description (cataloguing) and image that has been supplied by the Seller.
b) Items are offered for sale independently or alongside other Items as part of auctions, exhibitions and collections (“Event” or “Events”) containing Items from either a single or multiple sellers.
c) TAC is reliant on the Seller of each of the Items and any User organising an Event (“Event Organiser” or “Event Organisers”) to provide accurate information on the Items and Events, including but not limited to accurate images of each of the Items (“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 Items. Bidders/Buyers acknowledge this fact and accept responsibility for carrying out inspections and investigations to satisfy Yourself as to any Item’s description, condition, appearance and valuation, before engage in bidding on or buying an Item. If you require more information, we encourage you contact [email protected].
d) Where applicable, all dimensions for Items are approximate measures of the Items themselves and, unless otherwise stated, do not include additions such as frames or plinths.
e) Images used in the promotion of Items or Events are for identification purposes only, Items may therefore vary from the images available, including in respect of condition, size, colour and, where applicable, packaging. Images therefore cannot and should not be relied on as precise indications of size or to convey full information as to the actual condition or appearance of the Items or Events.
f) TAC encourages all Bidders/Buyers to inspect Items in person, before committing to bid or buy an Item. Unless otherwise stated, all Items offered on the Platform are assumed to be in good condition for their age and provenance.
g) Each User is responsible for making a full enquiry into the state of Items before buying or placing bids. You warrant that you are satisfied with the condition, accuracy of the description and appearance of each Item on which You wish to bid or buy and have not relied on the information provided via TAC whether online or offline.
2. Bidding and Buying
a) Each User wishing to bid in an auction must register prior to bidding by providing the relevant information as requested by TAC. This is to ensure the relevant due diligence checks can been carried out. However, TAC still has discretion to refuse participation in an Event or sale of an Item. You must register no later than three hours before the relevant event, on the website at com/register.
b) In some cases, subject to the final sale price of an Item, extra due diligence checks (such as anti-money laundering checks) are needed after an auction or Item has been paid for. TAC has discretion to cancel the sale of an Item should these checks not be completed to our satisfaction, or should the results of such checks not meet our necessary criteria.
c) Subject to the auction, Users can bid in five ways either: in person, through absentee bids, on the telephone, via a live-stream or by placing maximum bids in a Timed Auction.
d) By submitting either an absentee or telephone bid, the User accepts that by passing the bid to TAC and/or the Event Organiser it might not be executed by the auctioneer, TAC staff and/or Event Organiser 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 and/or the Event Organiser will never bid higher than instructed.
e) When telephone bidding, it is the responsibility of the User to ensure that the telephone connection is reliable and clear. By choosing to bid via telephone, the User accepts that there is a risk their bid may not register due to technical or human error. Telephone bids may be recorded.
f) When bidding via Live-Stream or placing maximum bids in a Timed Auction, it is the responsibility of the User to ensure that their internet connection is reliable and with enough bandwidth to handle the auction. By submitting bids online, the User accepts that there is a risk their bid may not register due to technical or human error. To mitigate this risk Users are must not to leave their bids to the last minute of an auction lot being sold.
g) By participating in an Auction, each User 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.
h) Employees and partners of TAC may bid at an Auction. To avoid any assumed advantage, employees of TAC and Event Organisers must place absentee bids no later than 24 hours before a Live Auction begins, or maximum bids no later than 24 hours before a Timed Auction closes.
i) It is the responsibility of the auction participant to ensure the correct details are entered when completing an online form.
j) In accordance with the responsibilities of the User set out in this clause 2, the User hereby acknowledges, accepts and agrees that TAC will not be liable for any missed, lost, invalid, failed or unsuccessful bid, regardless of the reason for the reason for the failure or unsuccessful nature of the bid.
3. Auctions
a) Auction Items are offered subject to a reserve price, which is the confidential minimum selling price set by the Seller. The reserve price does not exceed the low pre-sale estimate at the time of an Auction.
b) If an Item is not sold at an in-person or live-stream auction, 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.
c) TAC and/or the Event Organiser has discretion at any time to refuse any bid, withdraw any lot or re-offer an Item for sale (including after the fall of the hammer) if they have reasonable belief that there has been a technical or human error, a dispute, or unethical behaviour during the sale of the Item. TAC and/or the Event Organiser can then take any reasonable action to resolve the issue (i.e. reoffer the Item for sale). TAC shall have no liability for any such reasonable action(s) taken by the Event Organiser or auctioneer.
d) 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 Item, 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.
e) Subject to the auctioneer’s reasonable discretion, the highest bidder accepted by the auctioneer will be the successful purchaser of the Item. 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 Buyer and Seller.
4. Buyer Payments
a) Subject to any relevant specific terms and conditions governing the sale of particular Items which shall hereby prevail over this clause 4 (please refer to such terms and conditions which, if there are any, are available on the Platform), the provisions of this clause 4 apply.
b) Whether online or in-person, what is bid in an Auction is the final price (“Sale Price”) and the total sum that is due to be paid with 72 hours by the Buyer. Unless otherwise stated, there is no buyer’s commission and no payment fees are due from the Buyer in calculating the Sale Price.
c) Unless confirmed otherwise prior to the sale of particular Items and subject to clause 5 below, the only additional cost to the buyer may be storage charges that are due when the Item is not collected by the Buyer at the time of the auction and after payment had been made for the Sale Price.
d) A Buyer is required to pay the Sale Price in full within 72 hours following the Auction regardless of any intention and / or requirement to obtain an export or import license or other permit for such Item.
e) TAC accepts the following card payment through its payment partner MangoPay: CB, VISA, Mastercard, Maestro, Diner’s Club as well as direct transfers via bank wire.
f) With the exception of Own Art payments, all payments made to TAC will be processed by MangoPay and will be subject to MangoPay's payment terms and conditions, a copy of which are available atmangopay.com.
g) Payment can only be made by the User of the platform that has won/opted to buy the Item. Third part payments are not permitted.
h) Any Buyers making a payment over €10,000 (or the equivalent of €10,000 in any currency) in a single transaction, or a combined value of €10,000 (or the equivalent of €10,000 in any currency) over sequential associated transactions, are subject to anti-money laundering and know your client (“KYC”) checks.
i) On occasion some Items on the platform may be eligible for the Own Art monthly payment scheme. Buyers intending to use this payment method must meet the qualifying criteria and inform TAC 48 hours before an In Person Auction begins, a Timed Auction closes or before completing a Buy Now purchase.
j) Auction Buyers that are unsuccessful with their application to the Own Art monthly payment scheme are obliged to pay the Sale Price in full. Failure to do so within 72 hours notification of the failed application will result in the cancellation of the sale and the Item may be offered for sale at a set price to other interested Bidders/Buyers.
k) Sales are conducted in a single currency and any international Users are be responsible for all exchange rate differences that may occur at any time.
5. Transfer of Funds to Sellers
a) Sale proceeds are not released to the Seller until at least 14 days after the Buyer has confirmed receipt of the item.
b) Sale proceeds are only transferred to bank accounts registered in the Seller’s name. Third party sale processing is not allowed.
c) By agreeing to these terms and conditions, Seller’s accept that in the event of delayed fund transfers they will not hold TAC liable for any associated loss or damages the Seller may incur from the late transfer of funds.
6. Collection and Shipping
a) Sellers, Event Organisers and/or TAC are not obliged to release an Item to the Buyer until full payment has been received and, in some instances, if required, until appropriate identification of the Buyer for anti-money laundering purposes has been verified.
b) Unless otherwise stated, the cost of shipping is the responsibility of the Buyer and is an additional cost to the Sale Price for an Item.
c) The Buyer is responsible for all risk and insurance from the point in time that title in the Item passes from the Seller to the Buyer.
d) TAC will not accept any liability for damage caused to Items to the fullest extent permitted by law.
e) Subsections b) and c) above are subject to differing terms (if any) set forth in any relevant specific terms and conditions governing the sale of particular items which shall hereby prevail over such subsections of this clause 5 ( please refer to such terms and conditions, which, if there are any, are available on the Platform).
7. Failure to pay, collect and cancellation of the sale
a) Subject to any relevant specific terms and conditions governing the sale of particular Items which shall hereby prevail over this clause 6 (please refer to such terms and conditions which, if there are any, are available on the Platform), the provisions of this clause 6
b) If a Buyer pays for an Item but fails to collect the Item or pay for shipping within 7 days of the sale date, reasonable storage charges will be incurred details of which are available from TAC on notice. Items will not be released until all storage charges have been paid in full.
c) If an Item is paid for but not collected within 30 days of the sale date, the sale of the Item may be cancelled and the Sale Price, less any storage costs incurred during the 30-day period, will be refunded.
d) Failure by Buyer to pay the Sale Price within 72 hours in accordance with these Conditions, may also result in the cancellation of the sale of the Item and a lifetime ban of the User from the TAC platform and services.
e) TAC may also offer any applicable underbidders the opportunity to purchase the Item at a set price or auction the Item at a later date.
f) TAC has the right, but not the obligation, to rescind a sale without notice to any Users if: We have reasonable belief that there is doubt as to the Seller’s ownership of the Item, or Users involved in the sale have not passed any relevant due diligence and KYC checks.
8. Data Protection
a) In connection with our Services, TAC may ask Users to provide personal data. This data will be used (i) to enable TAC to fulfil its contractual obligations in relation to any services online or offline; (ii) to enforce these 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 services and the sale of items. By agreeing to these Conditions of Sale, you consent to TAC’s use of your personal data for the purposes set out in this clause 7.
b) For more information as to how we use your (or a User’s) personal data, please read our Privacy Notice, which is available on our website and is attached to these Conditions. We will only process personal data in accordance with our Privacy Notice.
c) 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 [email protected].
d) In order to fulfil our contractual obligations as a marketplace, TAC may need to share your personal data with third parties, e.g Sellers, Event Organisers, shippers, credit agencies and partners collaborating on any sales and Events.
e) Unless with the consent of the User, Sellers and/or Event Organisers that receive personal data are forbidden from using this information for marketing purposes, unauthorized or unsolicited advertising and any other use outside the sole purpose of fulfilling contractual obligations with the owner of the data.
9. Limitation of Liability
a) The total liability of TAC toward any Bidder or Buyer in relation to any breach of these Conditions shall be limited to the Sale Price of an Item or £1,000 whichever is lower.
b) Neither TAC, its directors, employees or agents:
i). is liable for any errors or omissions of information provide via the Platform or Services offered by TAC, whether orally or in writing;
ii). accept responsibility to any User in respect of acts or omissions, whether negligent or otherwise, in connection with the conduct of the sale of any Items or for any other matter relating to any Events.
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 to the fullest extent permitted by law.
d) Neither TAC, its directors, employees or agents, are liable to the Users for any loss or damage beyond the refund of the Sale 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 User 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.
f) All Users accept responsibility that the use of our Services and Platform is at your own risk and our Services are provided on an ‘as available’ basis.
g) We make no warranties or guarantees for Users on the ability to use our Platform for either listing, bidding, buying, selling Items whether via auction or Buy Now sales or any associated Services such as payment processing, User registration and shipping. TAC, its directors, employees or agents make no warranties or representations of any kind, express or implied, that our Services or Platform will meet your requirements or provide an uninterrupted reliable service free from errors.
h) By using our Services and Platform you agree not to hold TAC, its directors, employees or agents liable for any direct or indirect damages or loss you may incur in connection with the failure of our Services of Platform to fulfil its intended use. This includes but is not limited to loss of revenue and data, reputational damage, physical injury or emotional stress, and other consequential damages associated with your use or inability to use of our Platform and Services whether online or offline.
i) You agree to indemnify, defend, and hold harmless TAC, its directors, employees or agents from and against any and all third-party claims, demands, suits, and proceedings, and all related damages, losses, judgments, liabilities, and expenses (including reasonable attorneys' fees) arising out of or related to your use or inability to use our Platform, Services and any associated Events.
10. Copyright
a) The copyright in all images, illustrations and written materials produced by or for TAC or the Seller, relating to any Items listed on the Platform (including any logos and images) shall remain the property of TAC, or the Sellers and such images and materials may not be used by any other party without the relevant party’s prior written consent.
b) Unless agreed by TAC in advance, in writing, Users are not allowed to use TAC name, logo or URL in any way that incorrectly suggests our association with or endorsement of any User or Event.
11. Miscellaneous
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 User included when signing up to use the services of TAC. TAC’s email address for the purpose of this clause is [email protected].
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) Unless explicitly stated to the contrary in these Conditions, and with the exception of the User or MangoPay, 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.