THIS AUCTION AND THE BIDS BEING CALLED ARE BEING DONE SO FROM OUR AUCTIONEER AT OUR PREMISES IN JOHANNESBURG ACCORDINGLY THIS AGREEMENT MUST AND DOES COMPLY WITH THE PROVISIONS OF SECTION 45 OF THE CONSUMER PROTECTION ACT 68 OF 2008
1.1. The following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings:
1.1.1. “Act” means the Auctions (Bidding Agreements) Act 1927 and the Auctions (Bidding Agreements) Act 1969 in the United Kingdom and also section 45 of the CPA in South Africa Consumer Protection Act No. 68 of 2008 (“CPA”) as read with the Regulations promulgated thereunder in the Government Gazette No. 34180 on 1 April 2011;
1.1.2. “Artistic work” means:
220.127.116.11. any drawing, picture, painting, collage, sculpture, ceramic, print, engraving, lithograph, screen print, etching, monotype, photograph, digitally printed photograph, video, DVD, digital artwork, installation, artist’s book, tapestry, artist designed carpet, performative artwork and any medium recognised as such in the future;
18.104.22.168. any work of craftsmanship and/or artwork which does not fall under 22.214.171.124 as set out in the Copyright Act No. 78 of 1978.
1.1.3. “Auction” means any sale whereby a Lot is put up for sale by public auction and auctioned off by Ruarc Peffers on behalf of South South or such other auctioneer employed by South South from time to time;
1.1.4. “Auctioneer” means Ruarc Peffers or such other representative of South South conducting the Auction who warrant these Rules of Auction comply with the Act;
1.1.5. “Bidder” means any person who makes an offer to buy a particular Lot and includes the Buyer of any such Lot. A bid shall be made by a person registered to bid indicating a bid in any way meant to be understood that way by the Auctioneer and using the South South bidding platform through which he has registered to participate in any auction event;
1.1.6. “Buyer” means any Bidder who makes a bid or offer for a Lot which has been offered for sale (whether by Private Treaty, Auction or otherwise) and which bid or offer has, subject to a reserve price, been accepted by South South and/or the Seller;
1.1.7. “Business day” means any day other than a Saturday, Sunday, or any other official public holiday in South Africa or the United Kingdom;
1.1.8. “Platform costs” means the amount equal to 10% of the Hammer price plus VAT thereon payable by the Buyer to South South, from which the Auctioneers fee will be deducted as a first charge, on the sale of a Lot.
“Donation” means the amount equal to 20% of the Hammer Price on certain identified lots, plus any applicable VAT thereon, payable by the Buyer to South South, on the sale of a Lot.
1.1.9. “Catalogue” means any brochure, price-list, condition report or any other publication (in whatever medium, including electronic), published by South South for the purpose of or in connection with any Auction;
1.1.10. “Forgery” means any imitation of any artistic work made with the intention of misrepresenting the authorship, origin, date, age, period, culture, and/or source of any Lot;
1.1.11. “Hammer price” means the bid or offer made by the Buyer for any Lot that is knocked down by the Auctioneer at a sale of that Lot;
1.1.12. “Lot” means any item or items to be offered for sale as a unit and identified as such by South South for sale by way of Auction or by Private Treaty. Each Lot is, unless indicated to the contrary, regarded to be the subject of a separate transaction;
1.1.13. “Parties” means the Bidder, the Buyer, the Seller and South South;
1.1.14. “Prime rate” means LIBOR being the London Inter-bank Offered Rate;
1.1.16. “Private Treaty” means the sale of any Lot at a previously agreed upon price between the Buyer and the Seller represented by South South (that is, not by way of Auction);
1.1.17. “Purchase price” means the Hammer price less the Platform costs less the Donation. VAT (if applicable) or any other taxes shall be calculated on the sum of the full Hammer price. Buyer’s risk in all respects shall apply from the knock down of the Auctioneer’s hammer (and acceptance of the bid [or offer in the case of Private Treaty] if applicable). The Purchase price does not include any transport, or insurance that may be required by the Buyer;
1.1.18. “Reserve” means the minimum Hammer price (if any) at which a Lot may be sold at an Auction as agreed (whether in writing or otherwise) and in confidence between the Seller of that Lot and South South. All lots are sold subject to a reserve price unless announced otherwise;
1.1.19. “Sale” means the sale of any Lot (whether by way of Auction, Private Treaty or otherwise) and ‘sell’ and ‘sold’ shall have a corresponding meaning;
1.1.20. “Sale proceeds” means the amount due and payable to the Seller for the sale of the relevant Lot, made up of the Hammer price less the applicable Platform costs;
1.1.21. “Seller” means the person named as the Seller of any Lot, being the person that offers the Lot for sale;
1.1.22. “South Africa” means the Republic of South Africa;
1.1.23. “Terms of Business” means the terms and conditions of business and the Rules of Auction as set out in this document;
1.1.24. “United Kingdom” means Great Britain and Ireland;
1.1.25. “VAT” means value added tax levied in terms of the Value Added Tax Act and any other tax, levy, charge or impost, set by any Government which might be applicable to the sale contemplated in this agreement from time to time.
2.1. South South carries on the business of fine art Auctioneers and consultants on the Lots provided by the Sellers. As fine art Auctioneers, South South generally acts in the capacity of agent for the Seller.
2.2. Set out in this document are the terms and conditions governing the contractual relationship between South South and prospective Bidders, Buyers and Sellers. This document must be read together with:
2.2.1. sale room notices published by South South pertaining to the condition, description and/or authenticity of a Lot; and
2.2.2. any announcement made by South South and/or the Auctioneer prior to or on the proposed day of sale of any Lot,
provided that no changes to the terms set out in a Property Receipt Form shall be made without the prior agreement of South South and the Seller.
3. LEGISLATIVE FRAMEWORK
Every Auction is to be governed by inter alia the Auctions (Bidding Agreements) Act 1927 and the Auctions (Bidding Agreements) Act 1969 in the United Kingdom and also section 45 of the CPA in South Africa and the rules of Auction (the “Rules”) as amended from time to time.
4. GENERAL TERMS OF BUSINESS
4.1. Every bid made shall constitute an offer. Acceptance of the highest bid made, subject to confirmation by the Seller, shall be indicated by the knock down of the hammer or, in the case of sale by Private Treaty, the acceptance of the offer by South South or the Seller. In the event that the highest bid does not meet the reserve, it will remain open for acceptance by the Auctioneer or the Seller and for no less than 48 hours after the Auction was concluded.
4.2. In bidding for any Lots, all Bidders confirm that they have not been induced into making any bid or offer by any representative of the Seller and/or South South.
4.3. It is the sole responsibility of all prospective Buyers to inspect and satisfy themselves prior to the Auction or Private Treaty as to the condition of the Lot and satisfy themselves accordingly that the Lot matches any description given to them (whether in a Catalogue or otherwise).
4.4. All descriptions and/or illustrations set out in a Catalogue exist as guidance for the prospective Bidder and do not contain conclusive information as to the colour, pattern, precise characteristics or the damage to a particular Lot to be sold by way of Auction or Private Treaty.
4.5. Neither South South nor any of its servants, employees, agents and/or the Auctioneer shall be liable, whether directly or indirectly, for any errors, omissions, incorrect and/or inadequate descriptions or defects or lack of authenticity or lack of ownership or genuineness in any goods Auctioned and sold which are not caused by the wilful or fraudulent conduct of any such person.
4.6. South South shall not be held responsible for any incorrect, inaccurate or defective description of the goods listed for sale in the Catalogue or in any condition report, publication, letter, or electronic transmission or to the attribution, origin, date, age, condition and description of the goods sold, and shall not be responsible for any loss, damage, consequential damages and/or patrimonial loss of any kind or nature whatsoever and howsoever arising.
4.7. No warranty, representation or promise on any aspect of any Lot (save for those expressly provided for by the Seller in terms of paragraph 16), whether express, implied or tacit is given by South South, its servants, its agents, or its employees, or the Auctioneer or the Seller and accordingly nothing shall be binding or legally enforceable in this regard.
4.8. Any Lot which proves to be a Forgery (which will only be the case if an expert appointed by South South for such purposes confirms this in writing) may be returned by the Buyer (as his sole remedy hereunder or at law) to the Seller within 7 (seven) days from the date of Auction or Private Treaty (as the case may be), in the same condition in which it was at the time of the Auction or accompanied by a statement of defects, the number of the Lot, and the date of the Auction or Private Treaty at which it was purchased.
4.9. Buyer’s claiming (whether in contract, delict or otherwise) under paragraph 4.8 will be limited to the amount paid for a particular Lot and will not extend to any loss or damage of whatsoever nature suffered, or expense incurred by him/her including but not limited to claims for damages, loss of profit, injury to reputation, mental anguish and suffering etc;
4.10. The benefit of paragraph 4.8 will not be assignable and will rest solely and exclusively with the Buyer who, for the purpose of this condition, will be the only person to whom the original invoice is made out by South South or the Seller in respect of the Lot sold.
4.11. South South reserves its right, to refuse admission to any person to its premises or any other premises at which an Auction is to be conducted or to the electronic platform through which any auction event is conducted. Any defaulting bidder or buyer shall be refused access to any event or auction conducted by South South and shall remain barred until their default has been cured to the satisfaction of South South.
4.13. South South has, during the course of any Auction, the sole and absolute discretion, without having to give any reasons therefore, to refuse any bid, withdraw or reoffer Lots for Auction (including after the knock down of the hammer), cancel any sale if the Auctioneer and/or South South believes that there may be an error or dispute of any nature whatsoever, and shall have the rights, as it deems fit, to divide any Lot, to combine any two or more Lots or to put up any Lot for Auction again.
4.14. For any notice required to be given in connection with these Terms of Business and Rules of Auction:
4.14.1. South South will first attempt to make contact by telephone, followed by email, should there be no response, then contact will be attempted by registered post. Any notice that effects the details of the sale of a Lot will be agreed to between South South and the Seller prior to the sale of said Lot. If, for any reason whatsoever, South South is unable to make contact with a Seller, the relevant Lot will be withdrawn from the sale;
4.14.2. if given by South South, shall be delivered by hand, sent by registered post or by email to the address provided to South South by the relevant addressee as being the domicilium citandi et executandi of that addressee. Notice shall be deemed to have been received by the person who is required to receive such notice:
126.96.36.199. on the date of delivery, if delivered by hand or email;
188.8.131.52. on the fourth (4th) day from the date of posting, including the date of posting if posted by prepaid registered post from within South Africa, which postage shall be deemed to have been sent on receipt of the post office proof of posting.
4.14.3. if given to South South, such written notification must be given to South South at its email address as published by South South from time to time, whether on any brochure, catalogue or its website.
4.15. The Seller submits to the non-exclusive jurisdiction of the Courts of England. Each Auction and Private Treaty shall be governed in accordance with the laws of the United Kingdom and South Africa where applicable.
4.16. In the event that any provision of these Terms of Business is found by a court of competent jurisdiction to be unenforceable and of no effect, the remaining provisions of these Terms and Conditions shall not be affected by that determination and shall remain binding and of full force and effect.
4.17. Should any Party delay or not exercise their rights it shall not constitute a waiver of such rights or power. If a Party exercises their right or power, it shall not preclude such party from exercising any other right or power which they may have.
4.18. No variation, alteration, consensual termination, representation, condition, term or warranty, relaxation or waiver or release by South South, or estoppel against South South, or the suspension by South South, in respect of these Terms of Business, or any part thereof, shall be of any force or effect unless reduced to writing and signed by South South and the Buyer.
4.19. These Terms of Business and Rules of Auction constitute the entire agreement between the Parties.
4.20. The Buyer shall be responsible for the payment of the Seller’s and South South’s legal costs, calculated on the scale as between attorney and own client incurred by the Seller and South South in enforcing any of its rights or those of its principal whether such rights are exercised by way of legal proceedings or otherwise.
4.21. No Party shall be in breach of contract or liable for any loss of profit or special damages or damage suffered as a result of a force majeure or any other event which falls outside of the Parties’ reasonable control. Notice must be given to all Parties if such an event occurs in order to enable the defaulting Party to remedy their performance. The occurrence of the aforementioned events will not excuse a Party from paying any outstanding amounts owed to any of the other Parties.
5. TERMS RELATING TO THE BUYERS
5.1. Any Buyer and/or Bidders must register his/her identity with South South before the commencement of an Auction in accordance with the various provisions of inter alia UK Anti-Money Laundering (AML) and Know Your Customer (KYC) laws and regulations.
5.2. Upon registration by the Bidder, the Bidder must acknowledge that they are aware of and agree to be bound by these Terms of Business. All Bidders shall be personally liable for their bids and offers made during any Auction and shall be jointly and severally liable with their principals if acting as agent.
5.3. Any person acting on behalf of a Bidder or Buyer may be required to produce evidence of his/her authority to so act and in a manner that is satisfactory to South South in its discretion.
5.4. A Lot shall be sold to the highest bidder (regardless of the perceived or actual value of the Lot) but subject to the reserve or the consent of the Seller if the reserve has not been met.
5.5. No bid may be made for an amount which is lower than the fixed value set by the Auctioneer and any bid may be withdrawn prior to the hammer being struck down. It is the Auctioneer’s discretion to accept or reject a bid that is lower than the standardised incremental amount set by the Auctioneer. The Auctioneer may refuse any bid which does not exceed the previous bid by at least 5% (five per cent) or any such percentage which in the opinion of the Auctioneer is required.
5.6. Any dispute which should arise regarding the validity of the bid, the identity of the Bidder or between more than one Bidder, shall be resolved at the sole discretion of the Auctioneer.
5.7. Each Bidder is deemed to be acting in their capacity as principal unless South South has acknowledged otherwise in writing prior to the commencement of the Auction and the Bidder bidding for another shall be required to produce a letter authorising the Bidder to represent him and the Identity Documents of both persons.
5.8. All Bidders are encouraged to attend any Auction where a Lot is to be sold by Auction. South South will endeavour to execute any absentee, written bids and/or telephone bids, provided they are, in South South’s absolute discretion, received in sufficient time and in legible form as required under these Terms of Business.
5.9. Any bids placed by telephone before an Auction are accepted at the sender’s risk and must, if requested by South South, be confirmed in writing to South South before the commencement of the Auction. Any person who wishes to bid by telephone during the course of an Auction must make arrangements with South South at least 24 (twenty-four) hours before the commencement of the Auction. South South shall not be held liable for any communication breakdown or any losses arising thereof. The Buyer consents that any bidding may be recorded at the discretion of South South and consents to these Terms of Business.
5.10. The Buyer must make payment of the Platform costs immediately after the fall of the hammer but in any event no later than 48hours after the fall of the hammer. All payments shall be made by Credit Card, Swift transfer or any other recognised Electronic Funds Transfer (EFT) in full and make arrangements with Seller for collection and delivery of the purchased Lot immediately after payment in full has been effected. On hand over of the Lot to the Buyer (or his representative), the full risk and title (subject to payment in full having been made first) over that Lot shall pass to the Buyer, who shall henceforth be responsible for any loss of and/or damage to and/or decrease in value of any Lots purchased at the Auction or at a Private Treaty sale. Any Lot not collected immediately after the Auction will remain insured for 48 (forty-eight) hours after completion of the Auction. The Seller must be paid in full and the funds cleared before the Lot is handed over to the Buyer.
5.11. If the Buyer has not made payment within 1 (one) week of the Auction South South reserves the right to cancel the Sale and to claim damages from the Buyer including but not limited to the Buyers and Sellers premium, storage and insurance costs and the costs of conducting the auction which are estimated at one million rand per auction.
5.12. The collection of any Lot by a third party on behalf of a Buyer must be agreed with the Seller not later than the close of business on the day following the relevant Auction.
6. EXCLUSION OF LIABILITY TO BUYERS OR SELLERS
6.1. No Buyer or Seller shall be entitled to cede, delegate and/or assign all or any of their rights, obligations and/or interests to any third party without the prior written consent of South South in terms of these Terms of Business.
6.2. The Buyer accepts that neither South South nor the Seller:
6.2.1. shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided in a Catalogue or otherwise) provided to Bidders, or for any acts and/or omissions in connection with the conduct of any Auction or for any matter relating to the sale of any Lot, including when caused by the negligence of the Seller, South South, their respective employees and/ or agents;
6.2.2. gives any guarantee or warranty to Bidders other than those expressly set out in these Terms of Business and any implied conditions, guarantees and warranties are excluded; and
6.2.3. without prejudice to any other provision of these general Terms of Business, any claim against South South and/or the seller of a Lot by a Bidder shall be limited to the Hammer price of the relevant Lot. Neither South South nor the Seller shall be liable for any loss of profit, indirect or consequential losses.
6.3. A purchased Lot shall be at the Buyer’s risk in all respects from the knock down of the Auctioneer’s hammer (and acceptance of the bid if applicable), whether or not payment has been made, and neither South South nor the Seller shall thereafter be liable for, and the Buyer indemnifies South South against, any loss or damage of any kind, including as a result of the negligence of South South and/or its employees or agents.
6.4. All Buyers are advised to arrange for their own insurance cover for purchased Lots unless agreed otherwise in writing.
6.5. South South does not accept any responsibility for any Lots damaged by insect infestation, changes in atmospheric conditions or other conditions outside its control (including damage arising as a result of reasonable wear and tear). South South will be responsible for the replacement or repair costs for any frame and glass breakages resulting from the wilful or negligent conduct of any of South South’s servants and agents.
7. GENERAL CONDUCT OF THE AUCTION
7.1. The Auctioneer remains in control of the Auction and has the absolute discretion to either withdraw or reoffer any Lots for sale, to accept and refuse bids and/or to reopen the bidding on any Lots should he/she believe there may be a dispute of whatever nature (including without limitation a dispute about the validity of any bid, or whether a bid has been made, and whether between two or more bidders or between the Auctioneer and any one or more bidders) or error of whatever nature, and may further take such other action as he/she deems necessary or appropriate. The Auctioneer shall commence and advance the bidding or offers for any Lot in such increments as he/she considers appropriate.
7.2. The Auction is to take place at the stipulated time and no delay shall be permitted to benefit a specific person who is not present but should be present at the Auction.
7.3. The Auctioneer shall be entitled to bid on behalf of the Seller of any lot, up to but not equal to or more than the Reserve, where applicable.
7.4. A contract shall be concluded between the Buyer and Seller once the Auctioneer knocks down the hammer and this shall be the Hammer price accepted by the Auctioneer (after the determination of any dispute that may exist and subject to the Seller’s consent if the reserve price was not achieved). The benefits flowing from this agreement constitute a benefit for a third party, in this case, South South, which benefits South South hereby accepts. South South shall not be liable for any breach of the agreement by either the Seller or the Buyer.
8. IMPORT, EXPORT, COPYRIGHT RESTRICTIONS, LICENSES AND QUALITY OF THE GOODS SOLD
8.1. South South and the Seller, make no representation or warranties whether express, implied or tacit pertaining to the authenticity, quality, genuineness, condition, value, origin, ownership of any goods or whether express, implied or tacit as to whether any Lot is subject to import, export, copyright and licence restrictions. It is the sole responsibility of the Buyer to ensure that they acquire the relevant export, import licenses or copyright licenses prior to exporting or importing any Lots.
8.2. South South does not in any way undertake to ensure that the Buyer procures the necessary permits required under law, nor are they responsible for any costs incurred in obtaining a license (whether an application for such license was approved or not).
8.3. All Lots which incorporate any material originating from an endangered and/or protected species (including but not limited to ivory and bone) will be marked by a symbol in the description of the Lot in the Catalogue. South South does not accept responsibility for a failure to include these marks on the Lots. Any prospective Buyer is to ensure that they received the necessary permission from the relevant regulatory agents, specifically when importing and/or exporting the Lot. A Buyer will be required to acquire a permit from the Department of Nature Conservation or any similar government authority prior to exporting or importing the Lot as well as any other export or import license which may be required by law, including the licences required under the Convention of the International Trade in Endangered Species (“CITES”). Failure to obtain or be approved for such permits shall not constitute a ground for the cancellation of the sale or the non-payment of any amounts due in terms hereof.
9. ABSENTEE BIDS
9.1. Absentee bids are a service provided by South South upon the request of the Buyers. South South shall in no way be liable for any errors or omissions in such bidding process. The Purchase price of the Lots will be processed in the same manner as it would be in other bids.
9.2. Where two or more Buyers provide identical bids, the earliest will take precedence. When absentee bids occur by telephone they are accepted at the Buyer’s risk and must be confirmed prior to the sale by letter or e-mail to South South.
9.3. All absentee bids shall be registered with South South in accordance with South South’s procedures and requirements not less than 24 (twenty-four) hours before the Auction and/or the Private Treaty sale. South South reserves its right to receive, accept and/or reject any absentee bids if the aforementioned time period has not been satisfied.
9.4. An absentee bidder must register his/her identity in the same way that any other would be required to under these Terms of Business.
10. RESCISSION OF SALE
Notwithstanding the provisions above, if, within 7 (seven) days after the relevant Auction or Private Treaty sale, the Buyer makes a claim to rescind the sale due to Forgery and South South or the Seller is satisfied that the claim is justified, South South reserves the right to rescind the sale and refund the Buyer any amounts paid to South South and still held by South South in respect of that sale and the Seller hereby specifically authorises South South to do so.
11. PAYMENT AND COLLECTION
11.1. The Buyer acknowledges that South South acting in its capacity as agent for the Seller of a particular Lot:
11.1.1. VAT may be payable on the full Hammer price if the Seller is a registered VAT vendor;
11.1.2. South South shall be entitled to a Buyer’s commission and/or any other agreed fees for that Lot.
11.2. Upon the knock down of the hammer and acceptance of the price by the Auctioneer (subject to any reserve), the Buyer shall, before delivery of the Lot, pay South South the Platform costs and Donation (if applicable) and make arrangements for payment of the Purchase price immediately after the Lot is sold and should South South require, the Buyer shall provide it with their necessary registration details, proof of identity and any further information which South South may require.
11.3. The Buyer shall make payment in full to South South for all amounts due and payable to South South (including the Platform costs and Donation, if applicable, of each Lot bought by that Buyer) on completion of the sale but within 48 hours of the date of sale (or on such other date as South South and the Buyer may agree upon in writing) in cash, by credit card, Swift transfer or any other electronic funds transfer (“EFT”), or such other payment method as South South may be willing to accept. Any cheque and/or credit card payments must be arranged with South South prior to commencement of the Auction. All credit card purchases are to be settled in full on the date of sale and shall be subject to an administrative merchant fee of 3,5% of the Platform costs.
11.4. Ownership of a Lot shall not pass to the buyer thereof until South South has received settlement of the Platform costs and the Seller has received the Purchase price of the respective Lot in full and the funds have cleared. Seller shall not be obliged to release a Lot to the Buyer prior to receipt in full payment thereof. However, should Seller agree to release a Lot to the Buyer prior to payment of the full Purchase price, ownership of such Lot shall not pass to the Buyer but shall remain strictly and unconditionally reserved for the Seller, nor shall the Buyer’s obligations to pay the Purchase price be impacted, until such receipt by Seller of the full Purchase price in cleared funds.
11.5. The refusal of any approval, licence, consent, permit or clearance as required by law shall not affect the Buyer’s obligation to pay for the Lot.
11.6. All packaging and handling of Lots is at the Buyer’s risk and expense, will have to be attended to by the Buyer or the Seller if agreed between them in writing, and South South shall not be liable for any acts or omissions of any packers or shippers.
12.1. Until such time that the total Purchase price and any Sellers Premium plus vat has been paid and hand over has taken place, ownership of the purchased goods shall vest with the Seller.
12.2. Unless agreed otherwise in writing, the collection of the goods/Lots shall be done by the Buyer at their own cost immediately after the Auction has taken place. It is recorded and agreed that South South shall never be in physical possession of items sold and bought at any auction. The goods shall always be in the possession of the Seller or his designated representatives but not South South. The Buyer shall ensure that any third parties attending to collection for the Buyer have been properly authorised in writing to attend to such collections.
12.3. South South shall not provide any assistance of any nature whatsoever to the Buyer in transporting the goods upon the completion of the Auction.
13. BREACH BY THE BUYER
13.1. In the event that the Buyer breaches any provision of these Terms of Business, fails to make payment of the full Purchase price or fails to collect the goods bought as provided for in these Terms of Business, Seller in exercising its discretion will, without any prejudice to any other rights it may have in law, be entitled to exercise one or more of the following remedies set out below. Seller may:
13.1.1. institute proceedings against the Buyer for any non-payment and/or any damages incurred as a result of the breach of contract;
13.1.2. cancel the sale of that Lot or any other Lots sold to the defaulting Buyer at the same time or at any other Auction;
13.1.3. resell the Lot or do any such thing that would cause it to be resold by Auction or Private Treaty sale;
13.1.4. remove, store and insure the goods at the sole expense of the defaulting Buyer, the Buyer shall be responsible for all charges associated therewith;
13.1.5. retain any Lot sold to the same Buyer at the same time, or at any other Auction and only allow the Buyer to take delivery of such goods after all amounts due, owing and payable have been paid by the Buyer to South South and the other Sellers in terms of these Terms of Business, including interest, storage charges and any other charges;
13.1.6. South South may reject any bid made by or on behalf of the defaulting Buyer at any future Auction;
13.1.7. charge a reasonable rental fee for each day that the item is stored by from the date of Auction until the time of collection.
13.1.8. charge interest at a rate of the prime rate plus 3% (three per cent) per month on any outstanding amounts from the date of Auction.
13.1.9. charge the Buyer the full costs of conducting the auction which is estimated at GBP50 000.00 per event.
13.2. In the event that South South resells any Lot at a subsequent Auction as a result of South South exercising the Seller’s remedy referred to in paragraph 13.1.3 above, the Buyer shall be liable for any loss (if any), should the Lot be resold at an amount lower than the amount for which the Buyer purchased it. The loss shall be calculated as the difference between the resale price and the original price. South South shall be entitled to earn commission on any subsequent sale of the same work irrespective of how many times it is sold by them.
14. TERMS RELATING TO THE SELLER
14.1. As per the Seller’s irrevocable instruction, South South is instructed to sell at an Auction all objects submitted for sale by the Seller and accepted by South South and to sell the same to the relevant Buyer of the Lot of which those objects form part, provided that the bid or offer accepted from that Buyer is equal to or higher than the Reserve (if any) on that Lot (subject always to paragraph 14.4), all on the basis set out in these Terms of Business.
14.2. The Seller also irrevocably consents to South South’s ability to bid for any Lot of which any of those objects form part as agent for one or more intending Buyers.
14.3. South South is authorised to continue to market any objects not sold on Auction for a period of 14 (fourteen) days after the Auction for the possible sale of such objects by South South by way of Private Treaty or otherwise pursuant to paragraph 14.4.
14.4. South South is authorised to offer for sale either by Private Treaty or otherwise, without further instruction or notification to the Seller, within 14 (fourteen) days after the Auction, all or any remaining objects submitted for sale by the Seller and received and accepted by South South in accordance with paragraph 14.1, which objects were not sold on Auction. The bid accepted on these items must not be less than the amount that the Seller would have received, had that Lot been sold on Auction at the Reserve (if any) on that Lot taking into account the deduction of the applicable Seller’s commission for which the Seller is liable.
14.5. Both South South and the Auctioneer each have the right, to offer an object referred to above for sale under a Lot, to refuse any bid or offer, to divide any Lot, to combine two or more Lots with the prior approval of the relevant Seller(s), to withdraw any Lot from an Auction, to determine the description of Lots (whether in any Catalogue or otherwise), to store accepted objects at the Auction premises or any other location as he/she may deem fit and whether or not to seek the opinion of experts.
14.6. South South shall not be under any obligation to disclose the name of the Buyer to the Seller, save for the circumstances contemplated elsewhere in these Terms of Business or otherwise required by law.
15. ESTIMATION OF SELLING PRICE AND DESCRIPTION OF GOODS
15.1. Any estimation given by South South is an opinion and cannot be relied on as a true reflection of what the final Hammer price will be on the date of the sale and as such is never guaranteed. South South has the right to change any estimations at any point in time in agreement with the Seller recorded on the relevant Property Receipt Form.
15.2. The Seller hereby agrees that South South shall fully rely on any description of the goods or Lots provided to them by the Seller or his agent.
15.3. South South shall not be held liable for any error, misstatement or omission in the description of the goods/Lots whether in the Catalogue or otherwise unless such error, misstatement, omission is a direct result of the intentional, misleading and deceptive conduct of South South’s employees and/or agents.
16. WARRANTIES AND INDEMNITIES PROVIDED FOR BY THE SELLER
16.1. The Seller hereby warrants to South South and the Buyer that:
16.1.1. he/she is the lawful owner or consignee of the objects put up for sale or Auction and is authorised to offer such objects up for sale at an Auction;
16.1.2. he/she is legally entitled to transfer title to all such objects and that they will be transferred free of any encumbrances of third-party claims; and
16.1.3. he/she has complied with all requirements necessary, legal or otherwise, for the import (if importing is applicable to the sale) and has notified South South in writing of any third parties who have failed to comply with the aforesaid requirements in the past;
16.1.4. the place of origin of the Lot is accurate.
16.1.5. the object forming part of the Lot is capable of being used for the purpose to which it was made and has no defects which are not apparent from any external inspections and that he/she is in possession of any valid approval, license, consent, permit or clearance required by law for the sale of any Lot.
16.2. The Seller hereby indemnifies and shall keep South South and the Buyer indemnified against any loss or damage suffered by either party as a result of any breach of any warranty in these Terms of Business.
16.3. The Seller hereby agrees that South South may decline to sell any object submitted for sale, irrespective of any previous acceptance by South South to sell it, for any reason deemed reasonable and appropriate in its discretion.
17. Platform costs
Subject to remaining terms of this agreement, the Purchaser confirms that it will pay the Platform costs immediately after the fall of the hammer to South South such fee being deemed to have been earned and is payable immediately payable
18.1. All Lots are to be sold with a Reserve, unless otherwise agreed upon between South South and Seller in writing prior to the date of Auction. Any changes to a Reserve will require the prior consent of South South and the Seller. The Seller acknowledges that unless a reserve is set, South South shall not be entitled to bid on behalf of the Seller to protect the integrity of the value of any work being auctioned.
18.2. Where the Auctioneer is of the opinion that the Seller or any person acting as agent of the Seller, has made a bid on the Lot and above a Reserve that existed on such Lot, they may knock down the Lot to the Seller. The Seller will then be required to pay all expenses which the Buyer is liable for and any expenses which the Seller is liable for along with the Seller’s commission to South South.
18.3. In the event that a Reserve exists on a particular Lot, South South may sell such Lot at a Hammer price below the Reserve, on the condition that the Seller receives the amount they would have been entitled to, had the sale been concluded at the Reserve. South South reserves the right to adjust the Seller’s commission accordingly in order to allow the Seller to receive the amount payable had the Lot been sold at the Reserve.
18.4. Where a Reserve on a Lot does not exist, South South shall not be liable for the difference between the Purchase price and the estimated selling range.
19.1. Seller undertakes to insure all objects to be sold as part of any Lot, at its own expense, unless otherwise agreed to in writing, or otherwise, between the Seller and South South..
19.2. In the event that South South is instructed to not insure any property, the Seller shall bear the cost and risk at all times. The Seller also agrees to:
19.2.1. indemnify South South for any claims brought against South South and/or the Seller for any damage or loss to the Lot, however it may arise. South South shall be reimbursed by the Seller for any costs incurred as a result thereof; and
19.2.2. notify the insurer of the existence of the indemnities set out herein.
20. PAYMENT IN RESPECT OF THE SALE PROCEEDS
The Seller shall be responsible for collecting the balance of the purchase price excluding the Platform costs from the Purchaser.
21. WITHDRAWAL FEES
Written notice must be given to South South 7 (seven) days prior to the Auction, where a Seller decides to withdraw a Lot from Auction. South South reserves the right to convert any Seller’s commission payable on this Lot, photography costs, advertising and marketing costs, or any other expenses incurred on a Lot, into withdrawal fees. The amount of this withdrawal fee shall be determined based on the mid-estimate of the selling price of the objects comprising the Lot along with any VAT and expenses incurred thereon given by South South.
22. PHOTOGRAPHY AND ILLUSTRATIONS
The parties hereby grant to South South limited use rights to the images of any items placed on auction and sold for marketing and related purposes and in perpetuity.
23. LOTS WHICH HAVE NOT BEEN SOLD
The Seller and South South shall discuss and agree a strategy in respect of any lots unsold at any auction event and which remain unsold for 14 days after such auction event assuming the goods are not sold by private treaty through the agency of South South.
24. AMENDMENT OF THESE TERMS AND CONDITIONS
24.1. South South may, at any time and from time to time, in its sole discretion, amend, cancel or rescind any provision of these Terms of Business by publication of any such amended Terms of Business (whether on its website or by any other means whatsoever).
24.2. No amendment in terms of paragraph 24.1 above shall be binding on any Party to any Sale which has been entered into as at the date of that amendment unless agreed to by the relevant Parties in terms of paragraph 24.3.
24.3.1. amendment or consensual cancellation of these Terms of Business or any provision or term hereof;
24.3.2. agreement, bill of exchange or other document issued or executed pursuant to or in terms of these Terms of Business (including, without limitation, any valuation, estimate or reserve issued in terms hereof);
24.3.3. settlement of any dispute arising under these Terms of Business;
24.3.4. extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of these Terms of Business or of any agreement, bill of exchange or other document issued pursuant to or in terms of these Terms of Business,
shall be binding on any Party to any Sale concluded in terms of these Terms of Business unless agreed to by the Parties to that Sale (whether that agreement is recorded in writing or otherwise).