Chapter I General Provisions
Article 1 Governing Law
These Conditions of Business (hereinafter referred to as "these Conditions") are made in accordance with the Auction Law of the People's Republic of China, other applicable laws and regulations and international practices.
Article 2 Definitions and Interpretation
The terms used in these Conditions shall have the following meanings:
- "Company" means Beijing ChengXuan Auctions Co., Ltd.
- "Bidder" means a natural person, legal person or any other organization registered for an auction held by the Company, having completed necessary formalities and bidding for a Lot or Lots. The Bidder shall meet qualifications and conditions set forth in applicable laws and regulations of China in respect of buying a Lot or Lots. For the purpose of these Conditions, unless otherwise provided herein or the context otherwise requires, “Bidder” shall include any of its agents.
- "Buyer" means the highest Bidder buying the Lot at an auction held by the Company.
- "Seller" means a natural person, legal person or any other organization that consigns the Lot to the Company for auction in accordance with these Conditions. For the purpose of these Conditions, unless otherwise provided herein or the context otherwise requires, "Seller" shall include any of its agents.
- "Lot" means any item(s) deposited with the Company for sale at auction in accordance with law.
- "Auction Date" means, in respect of an auction, the date announced by the Company on which the auction will officially begin. In the case of any discrepancy between the actual date of auction and the date announced, the actual date of auction shall prevail.
- "Sale Date" means, in respect of an auction held by the Company, the date on which the auctioneer confirms the sale of any lot by striking his hammer or in any other public manner.
- "Hammer Price" means the amount of the highest bid accepted by the auctioneer in relation to a Lot.
- "Proceeds of Sale" means the net amount owed to the Seller equal to Hammer Price less commission pro rata, all Expenses and any other amounts owed to the Company by the Seller.
- "Purchase Price" means the total amount payable by Buyer for its bid, including Hammer Price, commission and other Expenses payable by Buyer as well as the charges caused by Buyer's defaults.
- "Expenses" means costs and charges, including but not limited to those with respect to Lot insurance, catalogue and other advertisements, packaging, transportation and storage and any other expenses incurred pursuant to relevant laws, regulations and provisions hereof.
- "Reserve" means the minimum (confidential) price at which the Seller agrees to sell the Lot.
- "Estimate" means the price of the Lot provided in the catalogue or other descriptive materials and estimated prior to the Auction. Subject to possible changes from time to time, the Estimate can not be deemed as the fixed sale price.
Article 3 Scope of Conditions
The Company organizes auctions pursuant to the laws, regulations and policies of China. These Conditions shall ensure the benefit of and be binding upon Seller, Bidder, Buyer and any other parties concerned (including but not limited to the agents of Seller, Bidder and Buyer) participating in an auction held by the Company. By bidding at an auction held by the Company, whether present in person or by agent, by written bid, telephone or other means, Bidders shall be deemed to have accepted these Conditions. All disputes between the parties participating in the Company’s auction shall be solved in accordance with the provisions of these Conditions.
Article 4 Warranty against Defect
The Company denies any warranty of the authenticity and/or quality of any Lot. Any descriptions, statements and comments in connection with the Lot provided by the Company shall be for information only and in no way shall they constitute any warranty of the authenticity and/or quality of the Lot. All Lots are sold "as is". The Bidder and/or its agent shall bear the responsibility of inspecting the Lot in person or through experts designated thereby and shall be legally liable for its bid for any Lot. By bidding at an auction held by the Company, the Bidder shall be deemed to have fully inspected the Lot in which they are interested in terms of authenticity and quality thereof and have satisfied themselves as to condition and value of the Lot. By bidding at auction the Bidder acknowledges that he is willing to bear any possible risk in bidding and that he has waived the rights of challenging the authenticity and/or quality of the Lot.
Article 5 Special Notice
When the auctioneer confirms the highest bid by striking his hammer or in any other public manners at an auction held by the Company, the highest Bidder shall be the Buyer of the Lot and the sale contract concerning the Lot shall come into effect immediately. Whether the purchase confirmation has been signed or not shall have no effect on the fact that the sale contract has come into effect. At that moment, the fact that the Lot has been lawfully sold to the highest Bidder shall be accepted by the Company, all Bidders, Seller and Buyer, who shall be entitled to and assume any rights and obligations arising therefrom under laws and these Conditions. Any party failing to perform obligations thereof shall assume relevant legal liabilities. Any Seller, Bidder, Buyer and other parties concerned participating in an auction held by the Company shall read these Conditions carefully and conform to the provisions hereof. All parties shall be liable for their own actions at auction and any loss caused by their failure to read the Conditions carefully. The Company reserves and will under appropriate circumstances practice the right to alter these Conditions, particularly by the form of a bulletin and/or a preannouncement of Auctioneer at auction. Any changes in these Conditions so made shall supersede all prior agreements.
Chapter II Commitment
Article 6 Commitment of the Company
The Company is established under the laws of the People's Republic of China. Honesty and good faith are basic principles underlying the Company's operations. The Company undertakes that it will at any auction and other related activities treat all Sellers, Bidders, Buyers and other relevant parties with honesty and good faith. With respect to the following aspects of any auction, the Company undertakes that:
- the Company will store the Lot in a reasonably prudential manner pursuant to these Conditions and prevailing practices of the auction industry and return to the Seller the unauctionable or unsold Lot pursuant to these Conditions;
- the Company will examine the Lot in a reasonably prudential manner and state its opinion in the catalogue or other relevant documents. However, in no way shall any representation or opinion of the Company on any Lot constitute any warranty or guarantee of the quality, authenticity, age, author or any other aspect of the Lot;
- the Company undertakes that the Lot bought by the Buyer will be stored in a proper manner pursuant to these Conditions after the auction. The Company further undertakes to assume the liability of compensating the Buyer for any losses and damages of the Lot, to the extent of the Purchase Price already paid by the Buyer, before the aforementioned risks have been transferred to the Buyer under these Conditions;
- notwithstanding the risks of losses or damages of the Lot have been transferred to the Seller or Buyer hereunder, the Lot not taken back by the Seller or taken away by the Buyer within the specified time limit will still be properly stored by the Company in good faith. However, the aforementioned good deed of the Company does not constitute warranty or guarantee to the Seller/Buyer that the Company will undertake any obligation to preserve the Lot, and any loss or damage of the Lot and all storage costs paid by the Company shall be subject to pertinent provisions hereof set forth below; and
- the Company will respect and under no circumstance breach the copyright of the Lot owned by the Seller or Buyer, and will comply with applicable laws and these Conditions when producing and using pictures, illustrations, catalogues, or other forms of images of the Lot. However, the Company will under no circumstances give any opinion or warranty in relation to the ownership and/or restrictions of the copyright of the Lot.
Chapter III Conditions Mainly Concerning the Seller
Article 7 Consignment Procedures
When the Company acts as an agent of the Seller to auction its property:
- The Seller as a natural person shall hold a valid identity certificate and enter into a consignment contract with the Company;
- The Seller as a legal person or any other organization shall hold a valid certificate of registration, identity certificate of legal representative, power of attorney and identity certificate of agent and enter into a consignment contract with the Company;
- When the Seller enters into a consignment contract with the Company, the Company shall be automatically authorized to produce pictures, illustrations, catalogue, or other forms of images of the Lot.
Article 8 The Seller's Agent
When arranging for consignment on behalf of the Seller, the Seller's agent shall submit to the Company the following documents:
- If the agent is a natural person, valid identity certificate;
- If the agent is a legal person or any other organization, valid certificates of registration, identity certificate of legal representative, power of attorney issued by such legal person or any other organization to the agent (natural person) thereof and the identity certificate of the agent (natural person); and
- Power of attorney issued by the Seller to the Seller's agent through lawful procedures.
Article 9 The Seller's Warranties
The Seller hereby makes irrevocable warranties as follows to the Company and the Buyer with respect to the consigned Lot:
- The Seller has exclusive and absolute ownership and legal right to dispose of the Lot. Without prejudice to any legal interest (including copyright) of any third party, the auction of the Lot will not violate any relevant law or regulation;
- The Seller has, to the best of its knowledge, made full and complete disclosure and description to the Company with respect to the origin and any flaw or defect of the Lot without any concealment and fabrication; and
- The Seller shall indemnify and hold the Company and/or the Buyer harmless from and against any claims, losses and damages or actions incurred or brought by the actual owner or any third party who claims to be the actual owner of the Lot and all Expenses and costs (including but not limited to attorney's fees, survey fees and court costs) incurred in connection therewith arising out of or in any way attributable to any breach of above warranties.
Article 10 Reserve
All Lots are offered subject to a Reserve, unless otherwise agreed by the Seller and the Company. The Reserve shall be determined by the Seller and the Company in writing and no modification or amendment of the Reserve shall be binding upon the parties unless prior consent of the other party is obtained. In the event that the Lot is not sold in the auction, the Company shall have right to sell such Lot at the Reserve after the auction and be entitled to commission therefor from the Seller,except for violating the relevant laws and regulations.Under no circumstances shall the Company accept any liability for failure in sale due to bidding lower than the Reserve at the auction.
Article 11 The Company's Discretion
The Company may decide on the followings at its absolute discretion:
- Explanation and/or appraisal of any Lot made by the catalogue of Lot and/or news media and/or in other ways;
- Adoption of expert's opinion;
- The arrangement for illustrations in catalogue, exhibitions and other advertising activities in connection with Seller's Lot and charge rates accrued thereupon;
- Whether the Lot is suitable for the Company to auction; and
- The place, date, conditions and way of auction.
Article 12 Unauctionable Lot
After the Seller has entered into the consignment contract with and delivered the Lot to the Company, if for any reason the Company believes that the Lot is not suitable for auction, the Seller shall, at the site which the Company at its sole discretion considers appropriate, collect the Lot within 14 days from the date of the Company’s notice dispatched (the date when the notice is dispatched shall be counted and the fees for the packaging and handling shall be paid by the Seller), in which case the consignment contract made between the Seller and the Company shall cease on the date the Seller collects the Lot. If the Seller fails to collect the Lot during the above-mentioned period, the consignment contract will be automatically terminated upon expiration of the term thereof. The Company reserves the right to dispose of the Lot in any way it deems reasonable if the Seller still fails to collect the Lot within 7 days following the ceasing of the consignment contract, in which case the proceeds from such disposal shall be collected by the Seller after deduction of all costs and Expenses incurred, if any remaining amount exists after such deductions.
Article 13 Suspension of Auction
The Company may suspend any auction at any time under any one of the following circumstances:
- The Company has objection to the ownership or authenticity of the Lot;
- Any third party has objection to the ownership or authenticity of the Lot with undertakings to provide relevant evidence, make security as required by the Company and take liability for all legal repercussions and losses due to suspension of auction;
- The Company and/or any third party has objection to representations made by the Seller or the accuracy regarding the Seller's warranty provided in Article 9 hereof; or
- The Company and/or any third party has any evidence to prove the Seller has already violated or is to violate any term of these Conditions.
Article 14 Withdrawal of Lots by Seller
The Seller may withdraw the Lot at any time prior to the Auction Date subject to the Company's consent and a written notice stating the reasons. In the case that the catalogue or any other advertisements of the Lot have begun to be printed upon the Seller's withdrawal, the Seller shall pay an amount equal to 20% of the insured value of the Lot and other Expenses in connection therewith. In the case that the catalogue or other advertisements have not been printed, the Seller shall pay an amount equal to 10% of the insured value of the Lot and other related Expenses. The Seller shall be liable for any disputes and claims caused by withdrawal of a Lot. The Seller shall indemnify, defend and hold the Company harmless from any and all claims, liabilities and Expenses, including without limitation attorney's fees and court costs, which may be imposed on the Company as a result of the aforementioned withdrawal.
Article 15 Insured Automatically
Unless otherwise agreed by the Seller and the Company, all the Lots will be automatically covered under the insurance of the Company as soon as the Seller enters into the consignment contract with and delivers the Lot to the Company. The insured value shall be based on the Reserve agreed by the Seller and the Company in the consignment contract (if no Reserve is provided, the insured value is the one agreed by both parties; if the Reserve is adjusted, the insured value shall be the original Reserve). The insured value is only subject to insurance and claims other than the Company’s warranty or guarantee for the value of the Lot and the Hammer Price of the Lot.
Article 16 Insurance Premium
Unless otherwise agreed by the Seller and the Company, the Seller shall pay the Company an insurance premium equal to 1% of the Hammer Price of the Lot after sale. In the case that the Lot fails to sell, the insurance premium payable by the Seller to the Company shall be 1% of the Reserve.
Article 17 Insurance Period
In the case that the auction of the Lot succeeds, the insurance period shall terminate on the earlier of 4 p.m. of the 28th day of the Sale Date, counting from that Date, and the date when the Buyer collects the Lot. In the case that the auction fails, the insurance period shall terminate at 4 p.m. of the 14th day counting from the day when the Seller has received the Company's notice to take back the Lot.
Article 18 Insurance by Seller
In the event that the Seller notifies the Company not to arrange insurance for the Lot in writing, he shall undertake to bear all the risks of losses and damages of the Lot and the following liabilities:
- To indemnify and hold the Company harmless from and against any claims or actions incurred or brought by any third party with respect to the losses or damages of the Lot;
- To indemnify and hold the Company and/or any other parties harmless from and against any losses and Expenses in relation to the losses or damages of the Lot caused for any reason; and
- To notify the terms of indemnity hereunder to any insurer of the Lot.
Article 19 Uninsured
The Company will not be liable for any damages or losses of the Lot caused by natural wear, inherent flaws, inherent or potential defects, inherent material changes, self-combustion, self-warming, oxidation, rust, leakage, rat-bite, woodworm, changes in atmospheric (climate, temperature or humidity) conditions or other reasons of natural changes, or caused by earthquake, tsunami, war, actions similar to war, hostile actions, armed conflicts, terrorism, rebellion, coup, strike, riots, traffic accident, aviation accident, or nuclear fission, nuclear fusion, nuclear weapon, nuclear radiation, or radioactive pollution. The Company will not take liability for any damages to or any losses of frames, glass, drawer, bottom mat, trestle, mounting, insert pages, roller or other similar accessories caused for any reason.
Article 20 Insurance Indemnity
Any damages or losses of the Lot caused by incidents or disasters covered by insurance the Company purchased for the Lot shall be handled in accordance with applicable laws and regulations of the People's Republic of China regarding insurance. The Company shall pay insurance indemnities less all Expenses incurred by the Company to the Seller after the Company obtains such indemnities from the insurance company.
Article 21 Non-Bidding
The Seller shall not bid for any Lot consigned to the Company thereby, nor authorize any other person to bid on behalf thereof. The Seller shall be liable for and indemnify the Company against any losses and damages caused by violation of this provision.
Article 22 Commission and Expenses
Unless otherwise agreed by the Seller and the Company, the Seller shall authorize the Company to deduct 10% of the Hammer Price as commission and other Expenses from the Hammer Price. Nevertheless the Company acts as the agent of the Seller, the Seller agrees that the Company may be entitled to the Buyer's remuneration and other Expenses payable by the Buyer in accordance with provisions in Article 48 hereof.
Article 23 Service Fee for Unsold Lot
In the case that the auction of the Lot fails due to bidding lower than the Reserve, the Seller shall authorize the Company to charge the Seller a service fee of unsuccessful auction equal to 3% of the Reserve (or the insured value if the Reserve is not available) and other Expenses payable by the Seller.
Article 24 Payment of Proceeds of Sale
In the case that the Buyer makes full payment to the Company in accordance with provisions in Article 49 hereof, the Company shall pay the Proceeds of Sale to the Seller in RMB after 35 days of the Sale Date.
Article 25 Deferred Payment
In case the Company does not receive the full payment from the Buyer upon the expiry of payment period under Article 49 hereof, the Company will pay the Proceeds of Sale to the Seller within 7 business days upon receipt of such full payment from the Buyer.
Article 26 Taxes
The Seller shall be responsible for paying any tax imposed on its Proceeds of Sale in accordance with applicable laws and regulations.The Company will withhold any tax the Company is obligated to withhold under relevant laws and the Seller shall assist the Company in completing all related formalities and bear corresponding taxes.
Article 27 Assistance in Collecting Deferred Payments
The Company shall be authorized by the Seller to collect deferred payment from the Buyer and claim against the Buyer for liabilities for breach of contract in the Company's name at the same time of being arranged for consignment. In the event the Buyer fails to make full payment to the Company within 28 days after the Sale Date (counting from that day), the Company is entitled to recover the commission and other Expenses payable by the Buyer in accordance with provisions in Article 56 hereof and to take necessary measures (including but not limited to entering into litigation, arbitration and any dispute resolution procedures held by the public authorities) as it deems practical to assist and/or represent the Seller in collecting deferred payments. However, the Seller and Company hereby agree that the aforementioned provisions shall under no circumstance exclude the right of the Seller to collect deferred payment from the Buyer in person or through any third party or involve any obligation of the Company to collect deferred payment from the Buyer on behalf of the Seller. The Company shall have no responsibilities and liabilities to the Seller in the case of any deferred payment by the Buyer.
Article 28 The Company's Discretion
The Company may determine the following matters, as the case may be, upon authorization by the Seller (at the Seller's Expenses):
- To agree special terms on how to make the payment of Purchase Price;
- To remove, store and arrange insurance for sold Lot;
- To settle claims brought by the Buyer or the Seller in accordance with relevant terms and conditions hereof; and
- Take other necessary steps to collect deferred payment from the Buyer.
Article 29 Unsold Lot
In the case that the Lot is not sold, the Seller shall, at the site which the Company at its own discretion considers appropriate, take back the Lot within 14 days upon receipt of the Company's notice (counting from that day and the packing and shipping at the Seller's own Expenses) and, pursuant to these Conditions, pay the Company fees for failed auction and all other Expenses. If the Seller fails to do so within said period, the Company reserves the right to resell the Lot by public auction or in any other way under these Conditions the Company considers appropriate and pay the Seller the Proceeds of Sale less unsold fees and other Expenses accrued from the first auction and all costs incurred in the resale of the Lot.
Article 30 Risks and losses
The Seller shall take liability for any risk and/or loss incurred beyond the aforementioned time limits in case of failure to take back the unauctioned or unsold Lot within said time limits. All the risks and Expenses of the unsold and/or unauctioned Lot shall be borne by the Seller upon the earlier of 4 p.m. of the 14th day after the Company has served the take-back notice (counting from that day) and the date when the Buyer collects the Lot. In the case that the Seller requires the Company, and the Company agrees, to assist in returning the Lot within the term stipulated in these Conditions, the Seller shall be liable for all risks, Expenses and losses of the Lot when it departs form the site designated by the Company. Generally, the Company is not responsible for arrangement of transportation insurance after departure of the Lot from the site designated thereby unless the Seller specifically instructs the Company to do so and pays the insurance premium in advance.The Company may assist in sending back the Lot to the Seller upon his request by mailing, express delivery or third-party transportation. Once the Company delivers the Lot to the mailing, express delivery or shipping office or firm or any of its employees or branches, the Lot shall be considered as having been returned by the Company and collected by the Seller.
Chapter IV Conditions Concerning the Bidder and the Buyer
Article 31 Catalogue of Lot
At the auction, the Company will prepare a catalogue to introduce in brief the status of the Lot with words and/or pictures for the convenience of Bidders and Sellers. The words, Estimate and pictures contained in the catalogue and other images and advertisements of the Lot are for information only and subject to revision before auction and shall not constitute any warranty of the Company in respect of the authenticity, value, tone, quality and flaw or defect of any Lot.
Article 32 Uncertainty of Catalogue
In case that the tone, color, graduation and shape shown in catalogue and/or any other illustrations, images and advertisements differ from those of the original of the Lot due to print, photograph and other technical reasons, the original shall apply.Any statement and appraisal in any form (including but not limited to the certificate, catalogue, slide show, news media) of any Lot made by the Company and its employees or agents are only for reference and shall not constitute any guarantee for the Lot. The Company and its employees or agents shall undertake no liability for any inaccuracy and omission in the statements and appraisal mentioned above.
Article 33 Inspection by Bidders
The Company shall undertake no guarantee for the authenticity and/or quality of the Lot. Any Bidder and/or its agent shall inspect and investigate the actual status regarding the Lot at his own cost and risk and take any legal liability for its bidding.The Company strongly advises the Bidders to inspect the original Lot they intend to bid for personally or with expert assistance or using other methods before the Auction Date. Bidders shall decide on the authenticity and quality of the Lot at their own cost and risk with reference to, instead of relying upon, the catalogue and other images and advertisements of the Lot.
Article 34 Registration of Bidders
To qualify as a Bidder, a natural person shall complete and sign the registration form and receive a bidding number before the Auction Date by presenting a valid identity document, and a legal person or any other organization shall complete and sign the registration form and receive a bidding number before the Auction Date by presenting a valid certificate of registration, identity certificate of legal representative or valid power of attorney. The Bidder shall keep the bidding number in a proper manner. Unless a prior written agreement is otherwise reached between the Company and the Bidder, any person who holds the bidding number at auction shall be considered to be the relevant Bidder himself/herself.
Article 35 Deposit
The Company will charge a deposit before the Bidder receives bidding number. The amount of deposit will be announced before Auction Date. The Company will refund all the deposit mentioned above without interest to the Bidder within five business days after auction in case the Bidder fails in auction. In the event that the Bidder succeeds at auction, the deposit will be taken as part of Purchase Price (If the Bidder succeeds in bidding several Lots, the Company is entitled to decide that the deposit and/or payment in part received is taken as the Purchase Price of the specific Lot or Lots) payable by the Buyer and the balance (if any) will be refunded at the time of collection. If there is any doubt or uncertainty concerning the credit standing or ability of any Bidder to implement any specific performance, the Company is entitled to ask for relevant proof from the Bidder or commission any other third party to investigate the said doubt or uncertainty and charge the said Bidder an additional deposit. The Company may also charge the Bidder an additional deposit if the Bidder defaulted or showed a poor credit standing in any previous auction held by the Company or any other auction organization. Failure to pay such additional deposit will entitle the Company to refuse participation by the said Bidder in any auction held by the Company.
Article 36 The Company's Option
The Company may at its discretion forbid any one from participating in any auction held thereby, admission to the premises or taking a picture or making a video recording during auction, as the case may be.
Article 37 Abnormal Events
In case of any abnormal events at auction, the Company may take necessary actions as the case may be. In the case that any dispute arises at auction, the Company may have rights to mediate and settle.
Article 38 Bidding as Principal
Any person who bids shall be deemed as principal, unless the Bidder presents to the Company a written certificate showing that it is the agent of a principal and subject to the Company's approval in writing before Auction Date.When arranging for bidding, the Bidder's agent shall present to the Company the original power of attorney and a copy of the valid identity certificate of the Bidder and its agent each while the Company will examine the original of such identity certificate.The power of attorney issued by a Bidder shall indicate the name of the agent, authorized items, acting authority and period.
Article 39 Commission Bids
The Bidder shall in principle attend the auction personally; otherwise it may give the Company a commission in writing or in any other way approved by the Company to bid on its behalf. The Company shall have the right but no obligation to accept such commission.
Article 40 Procedures of Commission Bids
The Bidder who intends to give the Company a commission to bid on its behalf shall present the Company with a written authorization certificate and hand in a deposit in accordance with provisions in Article 35 hereof within the specified period (not later than 24 hours before Auction Date). Otherwise, the Company has the right to reject the commission.
Article 41 Cancellation of Commission Bids
The Bidder who entrusts the Company to bid on its behalf shall inform the Company of cancellation in writing not later than 24 hours before Auction Date.
Article 42 Non-liability of Commission Bids
Since the Company charges no fee for bidding on behalf of the Bidder in the case that the Bidder can not attend the auction personally, the Company shall not be liable for any failure in bidding or any negligence or fault in the commission bids.
Article 43 Principle of Priority
In the event that two or more Bidders entrust the Company to bid on their behalf for the same Lot and succeed with the same commission price, the Bidder whose authorization certificate was first received by the Company shall be the Buyer of the Lot.
Article 44 Auctioneer's Discretion
The auctioneer is entitled to represent the Company to increase or decrease the bidding ladder, refuse any bid, or restart auction in case any dispute arises.
Article 45 Screen of Video Images
At some auctions, there will be a video screen or other screens in operation for the convenience of Bidders, which are only for reference. However, there might be errors on the screen. The Company shall not be liable for any losses and damages caused by such errors in amounts, serial number or pictures of the Lot, or foreign exchange rate.
Article 46 Successful Bid
When the highest bid is confirmed by the auctioneer's hammer striking or in any other public manner, the Bidder offering the highest bid shall succeed in the auction and the sale contract concerning the Lot shall come into effect immediately. The said highest Bidder of the lot will be the Buyer of the Lot.
Article 47 Auction Record
The Company will prepare a written record with respect to the auction signed by the auctioneer and the recorder.At the auction, for the convenience of the Buyers' payment and so on, the Buyer shall sign the purchase confirmation showing the successful bid after the highest bid is confirmed by the auctioneer's hammer striking or in any other public manner. Signing the purchase confirmation is one of the proofs that the sale contract concerning the Lot has come into effect.
Article 48 Remuneration and Expenses
The Buyer shall pay the Company a remuneration equal to 15% of Hammer Price and other Expenses payable by the Buyer hereunder and acknowledge that the Company is entitled to charge commission and other costs payable by the Seller under Article 22 hereof.
Article 49 Payment
The Buyer shall make full payments in a lump sum and collect the Lot (packaging and handling at the Buyer's expense) within 28 days following the Sale Date; otherwise the Buyer shall be liable for breach of contract.
Article 50 Currency
All payments shall be made in the currency designated by the Company. In the event that the Buyer makes payments in a currency other than the designated one, the currency shall be converted at the rate agreed upon by the Buyer and the Company or at the rate announced by the People's Bank of China one(1) business day prior to the payment. The Buyer shall reimburse the Company for any bank charges, commission and other Expenses for converting the currency into RMB.
Article 51 Passing of Title
The Buyer will acquire ownership of the Lot after having paid Purchase Price in full and picking up the Lot.
Article 52 Transfer of Risks
After a successful bid, any Lot purchased shall become at the Buyer's sole risk when, whichever is earlier:
- the Buyer collects the Lot purchased; or
- the Buyer pays to the Company full Purchase Price for the Lot; or
- it is 4 p.m. of the 28th day after Sale Date (counting from that day).
Article 53 Collection
The Buyer shall, at the site the Company at its sole discretion considers appropriate, collect the purchased Lot no later than 4 p.m. of the 28th day after Sale Date (counting from that day) after having made full payments. In case of failure to do so, the Buyer shall be solely liable for all risks and losses of the Lot and bear all Expenses for transportation, storage and insurance in connection therewith due to delayed collection. Nevertheless the Lot is still preserved by the Company or any other agents on behalf of the Buyer, the Company and its employees or agents shall not be liable for any losses and damages of the Lot caused for any reason.
Article 54 Package and Transportation
The Company reserves the right to decide whether to accept the Buyer's request to arrange packing and handling service. The Company may arrange packing and handling of the purchased Lot on behalf of the Buyer as non-profit services upon its request at the sole risk and loss of the Buyer. Under no circumstances shall the Company take any liability for any damages or losses of glass, frames, drawer, bottom mat, trestle, mounting, insert pages, roller or other similar accessories arising out of any reason. In the case that the Buyer requires the Company to assist in sending the purchased Lot by mailing, express delivery or any other shipping way (with packing, mailing and transportation at the cost of the Buyer), once the Company does so in that way, the Lot shall be considered as having been received by the Buyer in normal procedure. The Buyer shall be liable for all risks during the foregoing process. The Company is not responsible for arrangement of shipping insurance, unless the Buyer specifically instructs the Company to do so and bears the insurance premium. In addition, the Company shall undertake no liability for any fault, omissions, damages and losses caused by the packers or carriers the Company recommended or the Buyer designated.
Article 55 Export of Lot
The Company will, to the best of its knowledge, identify in catalogue or at auction any Lot prohibited to be exported under the Law of the People's Republic of China on Protection of Cultural Relics and other relevant laws and regulations. The Buyer shall be responsible for applying for export license in accordance with Chinese laws for the Lot permitted to be exported pursuant to the Law of the People's Republic of China on Protection of Cultural Relics and other relevant laws and regulations.
Article 56 Remedies for Non-payment
In the case that the Buyer fails to make full payment within the period provided in Article 49 hereof, the Company shall be entitled to exercise one or more of the following remedies:
- Commence lawsuit, arbitration or other dispute resolution proceedings against the Buyer to request for payment obligations;
- Cancel the sale contract and pursue the corresponding legal liability of the Buyer in accordance with the provisions of relevant laws and regulations and these Conditions;
- Withhold the deposit and hold the Buyer liable in accordance with these Conditions;
- Charge the Buyer an interest at a rate of three ten-thousandths per day on the due and unpaid amount until such payment is made fully, to the extent it remains unpaid fully for more than 28 days after Sale Date, unless otherwise agreed by the Buyer and the Company;
- Commence lawsuit, arbitration or other dispute resolution proceedings against the Buyer for any damages caused by the Buyer's breach of contract, including but not limited to the losses of interest on deferred or unpaid payment by the Buyer and the attorney fee;
- Exercise a lien on the purchased Lot or other properties of the Buyer which may be in the Company's possession for any reason. The Buyer is liable for all Expenses and/or risks incurred during the period of lien. In case the Buyer fails to perform all relevant obligations hereunder within the specified period, the Company shall have the right to dispose of such property in accordance with relevant laws and regulations of China. In case the proceeds cannot cover the amount outstanding, the Company is entitled to claim for the balance;
- Cancel the sale of the Lot and any other Lot sold to the same Buyer at this auction or at any other auctions and reserve the right to claim for the losses caused by the cancellation;
- Resell the Lot by auction or other ways in accordance with these Conditions, subject to consent of the Seller. The original Buyer shall be liable to the Company for the remuneration/commission and other Expenses incurred at such auction as well as all Expenses for resale by auction or otherwise. In addition, the original Buyer shall also be liable for the shortfall together with all costs, in the event such resale is for less than the original Purchase Price and Buyer's Expenses for the Lot;
- Other appropriate measures.
Article 57 Remedies for Deferred Collection
In case the Buyer fails to collect the purchased Lot within the period provided in Article 49 hereof, the Company shall be entitled to exercise one or more of the following remedies:
- Arrange storage of the Lot at the Company or any other place at Buyer's risk and/or Expenses. The Buyer shall pay the Lot storage fee equal to 0.3‰ of the Hammer Price of the Lot per day from the 29th day following Sale Date to the actual collection day and the insurance premium equal to 1% of the Hammer Price of the Lot. The Buyer shall not collect the Lot unless the Purchase Price and relevant Expenses are paid in full (package and transportation at the Buyer's expense);
- Exercise a lien on the purchased Lot. After 30 days of delayed collection by the Buyer, the Company may, as the case may be, dispose of such Lot and use the proceeds to compensate for the amount outstanding owed to the Company including but not limited to storage, insurance and transportation costs;
- Take the purchased Lot and deposit it at a take-and-deposit institution. The cost caused by the take-and-deposit shall be borne by the Buyer. All matters concerning such take-and-deposit shall be subject to applicable laws and regulations of China.
Chapter V Miscellaneous
Article 58 Confidentiality
The Company shall be obligated to maintain the confidentiality of any information provided to it by Seller, Bidder and Buyer and indemnify and hold Seller, Bidder, Buyer and the Company harmless from and against any damages to their legitimate rights and interests in accordance with relevant laws and regulations of the People's Republic of China and these Conditions.
Article 59 Identification
The Company may identify or reidentify the Lot as it deems necessary at the Company's own discretion at any time (including but not limited after the delivery of the Lot to the Buyer, the payment of Proceeds of Sale to the Seller from the Company) after entering into the consignment contract with the Seller. The identification items may include its maker, date, name, type, material, condition, flaw and size. In case of any discrepancy with respect to the status of such Lot between the identification results and the consignment contract, or the damage to the Company’s reputation, the Company shall be entitled to terminate or modify the consignment contract. In the case that the consignment contract has been fulfilled, the Seller should return the Proceeds of Sale to the Company. The Seller shall assume compensation liability according to the rules for any violation of warranties in Article 9.
Article 60 Copyright
The Company shall be entitled to take photographs, make illustrations or produce catalogues or other images relating to the Lot consigned to the Company for auction and shall have the copyright in such photographs, illustrations, catalogues or other images mentioned above.
Article 61 Exemption
The Company shall undertake no liability for any breach of contract by the Buyer or the Seller. The Company may at its sole discretion disclose the name and address of the Buyer or the Seller to the other party to enable that party to commence legal proceedings to recover the losses, provided that, prior to such disclosure, the Company takes reasonable steps to notify the party whose information will be so disclosed.
Article 62 Liability for Impairing the Company's Reputation
The Seller shall not take any legal proceedings against the Auctioneer in terms of its honesty and business reputation without definite evidence nor otherwise behave in a way harmful to its business reputation (including but not limited to the identity of the Lot returned and the impartiality of identification results of the Lot); otherwise the Auctioneer may demand indemnity from the Seller for the loss of business reputation and all Expenses arising therefrom. Such indemnity shall be in the same amount as the reserve of the Lot. Without any definite evidence, the Buyer shall not make any groundless or irresponsible comment on the authenticity of the sold Lot or take any legal proceedings against the identity of the Lot delivered by the Company to the Buyer nor behave in any manner harmful to the Company's business reputation; otherwise the Company shall have the right to demand official apology and indemnity from the Buyer for the loss of business reputation and all Expenses arising therefrom. Such indemnity shall be in the same amount as the Reserve of the Lot. Without definite evidence, any other persons (including but not limited to the Bidder) shall not make any groundless or irresponsible comment on the authenticity of the sold Lot or behave in any manner harmful to the Company’s business reputation; otherwise the Company shall have the right to demand official apology and indemnity from such persons for the loss of business reputation and all Expenses arising therefrom. Such indemnity shall be in the same amount as the Reserve of the Lot.
Article 63 Notice
Both the Bidder and the Seller shall notify the Company of their valid and regular contact information. Any change in such contact information shall be notified in writing to the Company as soon as possible. All notices referred to in these Conditions shall be in writing and delivered by mail or fax. A notice sent by mail shall be deemed to have been delivered and received by the addressee via normal mail service on the date when the Company gives the notice to the post office. A notice sent by fax shall be deemed to be received on the date when it is faxed.
Article 64 Severability
Rights and obligations of parties participating in an auction held by the Company shall be subject to these Conditions. If any provision or part of these Conditions is deemed invalid, unlawful or unenforceable by a competent agency, these Conditions shall be ineffective to the extent of such unlawfulness or unenforceability without invalidating or affecting the validity or enforceability of the remaining provisions of these Conditions.In case of any discrepancy between these Conditions and any relevant law or regulation currently in force, these Conditions shall prevail if they do not violate any prohibitive provisions of such laws and regulations. Any matters not covered by these Conditions shall be governed by existing laws and regulations applicable thereto, if any, or subject to domestic or international trade practices if such matters are not covered by these Conditions or any existing laws or regulations.
Article 65 Dispute Resolution
Any dispute arising between parties participating in an auction held by the Company under these Conditions shall be referred to a Chinese court whose jurisdiction covers the business address of the Company, unless the parties have agreed otherwise. Such disputes shall be governed by the laws of the People's Republic of China.
Article 66 Language
These Conditions are written in Chinese and English. The English version is only for reference. In case of any discrepancy between Chinese version and English version, the Chinese, as the official version, shall prevail.
Article 67 Date of Effectiveness
These Conditions shall be effective as from January 1st, 2014.
Article 68 Right to Interpret
Headings are used in these Conditions for the convenience of the parties only and shall not be incorporated into these Conditions and shall not be deemed to be any indication of the meaning of the clauses.