L.S. SMELLIE & SONS, LIMITED (Company Number SC007954) Terms of Business for Buyers and Seller
1.1. In these Terms of Business for Buyers and Sellers (“Terms”), capitalised words shall
have the meaning assigned to them below:
“Auctioneer” means L.S. Smellie & Sons, Limited (registered in Scotland with company number SC007954 and having its registered office at Hamilton House, Strathaven Rural Centre, Whiteshawgate, Strathaven, South Lanarkshire, ML10 6SY), or its authorised auctioneer as appropriate.
“Bidder” means a person who bids for any Lot during an auction, whether they are personally present or bidding by telephone or online or otherwise.
“Buyer” means the Bidder who offers the highest accepted bid for a Lot and is deemed to have won the Lot.
“Business Day” means a day when banks are ordinarily open for business in Scotland.
“General Auction” means the Auctioneer’s weekly auction for non-specialist items including household plenishing, white goods, televisions, laptops, jewellery, toys, books and ceramics.
“Hammer Price” means the level of bidding reached for a Lot (at or above any reserve price) when the Auctioneer brings down the hammer, or otherwise intimates completion of the sale of that Lot.
“Lot” means the item or items purchased at auction by the Buyer, or consigned for sale by the Seller.
“Seller” means the person who consigns an item for sale.
“Specialist Auction” means an auction solely for a particular class of specialist
items, including antiques, fine art and collector’s items.
1.2. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the word, description, definition, phrase or term preceding those terms.
1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment made after the date of this agreement shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.
2.1. The Auctioneer acts as agent solely for and in the interests of the Seller.
2.2. The Auctioneer does not act for, and does not give advice to, Buyers or Bidders.
2.3. Any statements made by the Auctioneer in respect of a Lot are made on behalf of the Seller, and the Auctioneer makes no warranty as to the accuracy or completeness of any statement made in respect of any Lot.
2.4. The Auctioneer hereby expressly disclaims any and all responsibility for any default by a Seller or a Buyer.
2.5. The Auctioneer at no time has any title to any Lot.
3. SUBMISSION OF GOODS
3.1. A Seller who wishes to consign goods for sale at an auction shall deliver the goods to the Auctioneer, together with a completed Entry Form.
3.2. The Seller warrants to the Auctioneer that he is the true owner of the goods consigned, or is properly authorised by the true owner to offer the consigned goods for sale, and that he is able to transfer good and marketable title to the goods free from any third party claims.
3.3. The Seller warrants that he has provided the Auctioneer with any and all information concerning the provenance of the consigned goods, including certificates of authenticity (if applicable).
3.4. The goods will be catalogued by the Auctioneer and, where applicable, grouped into appropriate Lots.
3.5. Subject to available space, each Lot will be entered into the next available auction.
3.6. Sellers will be charged an entry fee of £3 plus VAT for a General Auction listing per lot. The entry fee is payable regardless of whether or not the Lot is sold at the auction.
3.7. All Sellers shall be deemed to have read and accepted these Terms.
4. CATALOGUING AND ESTIMATE
4.1. The Auctioneer reserves the right to catalogue goods as they see fit.
4.2. The Auctioneer relies on information provided by the Seller when preparing a catalogue description. Bidders hereby accept that representations or statements made in the catalogue description involve matters of opinion, and the Auctioneer accepts no liability for any representation or statement that is subsequently found to be inaccurate, except where such representation or statement was made fraudulently or negligently.
4.3. Where there is no mention of condition in the catalogue description, this is not an indication of perfect or any condition.
4.4. The Auctioneer shall determine, it its sole discretion, whether each Lot shall be placed in a General
Auction or a Specialist Auction.
4.5. The Auctioneer may place an estimate on any particular Lot. Estimates are a matter of opinion and exclude the Buyer’s premium, VAT (if applicable) and the Droit de Suite royalty (if applicable). Estimates are indicative only should not be relied upon by either the Seller or any Bidder as a prediction of the Hammer Price or as the value of the Lot.
4.6. The Auctioneer reserves the right to refuse to accept or to dispose of any Lots which it considers, in its sole discretion, to be unsaleable or of negligible value without reference to the Seller and at the Seller’s expense.
5. SPECIAL PROVISIONS Works of Art
5.1. In a catalogue description of a painting, picture or other work of art, the following shall apply:
5.1.1. the use of an artist’s full name indicates that it is the considered opinion of the Auctioneer that the work of art is the work of the named artist;
5.1.2. where a work of art is ‘attributed to’ a named artist, it is the considered opinion of the Auctioneer that the work of art is likely to have been produced by the named artist; or
5.1.3. where a work of art is said to be ‘after’ a named artist, it is the considered opinion of the Auctioneer that the work of art is a later work, perhaps a copy of work by the named artist, which may or may not have been authorised.
5.2. Only where a work of art is stated to be by a named artist, without any qualification (including ‘attributed to’ or ‘after’), shall the authenticity guarantee in clause 17 apply.
5.3. All guns requiring a license must be proof-marked and fit for sale.
5.4. All electrical appliances consigned must be fit to pass current safety tests in accordance with the Low Voltage Electrical Equipment (Safety Regulations) 1989.
5.5. The Buyer must have the electrical appliance checked by a qualified person within twenty-four (24) hours of the auction. If any defect is found, the Auctioneer must be notified within such twenty-four (24) hour period.
5.6. Where the Auctioneer is satisfied that there is a defect, the Auctioneer will offer a full refund (including Buyer’s premium) to the Buyer and will dispose of the defective item. The value of such refund, together with all costs incurred by the Auctioneer in testing and disposal of the item shall be for the account of the Seller, and the Seller hereby agrees to indemnify and hold harmless the Auctioneer in respect of such costs.
5.7. Where there is a defect with any electrical item and the item is disposed of pursuant to clause 5.6, the Auctioneer expressly does not undertake to notify the Seller of such disposal or to return the item to the Seller.
Furniture and Soft Furnishings
5.8. All upholstered, or partly upholstered, furniture, beds and soft furnishings must meet the current safety regulations under the Furniture and Furnishings (Fire) (Safety) Regulations 1988, unless such upholstered or partly upholstered furniture was manufactured prior to 1950.
5.9. Where the Auctioneer considers that any item does not comply with clause 5.8, the Auctioneer shall remove the non-compliant parts (if applicable) or withdraw the item from the auction and dispose of the non-compliant item. All costs incurred by the Auctioneer in disposal of the item shall be for the account of the Seller, and the Seller hereby agrees to indemnify and hold harmless the Auctioneer in respect of such costs.
5.10. Where any item is disposed of pursuant to clause 5.9, the Auctioneer expressly does not undertake to notify the Seller of such disposal or to return the item to the Seller.
5.11. All items consigned must be safe for the purpose for which they are designed, except if the item is an antique.
5.12. Where the Auctioneer considers that any item does not comply with clause 5.11, but is suitable for repair or reconditioning, the Auctioneer shall label the item as such prior to the auction.
5.13. Where the Auctioneer considers that any item does not comply with clause 5.11, but is not suitable for repair or reconditioning, the Auctioneer shall withdraw the item from the auction and dispose of the unsafe item. All costs incurred by the Auctioneer in disposal of the item shall be for the account of the Seller, and the Seller hereby agrees to indemnify and hold harmless the Auctioneer in respect of such costs.
5.14. Where any item is considered to be unsafe by the Auctioneer and the item is disposed of pursuant to clause
5.13, the Auctioneer expressly does not undertake to notify the Seller of such disposal or to return the item to the Seller.
6. CONDITION OF LOTS
6.1. The Auctioneer makes no statement or warranty as to the condition of any Lot.
6.2. It is the responsibility of the Bidder to inspect the Lot and ascertain condition. The Auctioneer shall provide an opportunity to view and inspect Lots prior to the auction.
6.3. Where the Bidder is unable to inspect the Lot in person, a condition report may be requested to ascertain condition. A condition report on any item of a mechanical nature or with moving parts will not provide a guarantee of the working order of, for example, a watch, clock, barometer or other instrument. The condition report will only take account of the aesthetic or external condition of any given Lot. Requests for a condition report must be received by 9am the day prior to the auction. Where a condition report is not requested and the Buyer subsequently detects damage, the Auctioneer will have no liability to the Buyer in respect of such damage.
6.4. The provision of a condition report to any Bidder does not form any contract between the Auctioneer and the Bidder.
7. BIDDING PROCEDURES 7.1. General
7.1.1. All Bidders must have registered with the Auctioneer in advance of the auction. The Auctioneer does not accept a mobile telephone number as the sole contact telephone number for a Bidder. Photographic identification will be required to complete registration.
7.1.2. All Bidders must comply with any security checks imposed by the Auctioneer before entering the auction room or bidding on any Lot.
7.1.3. Bidders may be requested to supply bank references prior to being permitted to bid on any Lot.
7.1.4. Bidders shall be deemed to be acting as principals.
7.1.5. All Bidders shall be deemed to have read and accepted these Terms.
7.1.6. No Bidder under the age of eighteen shall be permitted to bid for alcoholic drinks.
7.1.7. The bidding increments deemed appropriate for any particular Lot shall be at the sole discretion of the Auctioneer.
7.1.8. Once made, no bid may be withdrawn.
7.1.9. The Auctioneer reserves the right to withdraw the Lot from the Auction before the fall of the hammer.
7.1.10. The Auctioneer reserves the right to refuse any bid.
7.1.11. The Auctioneer reserves the right to refuse to allow any person to bid until such time as all outstanding amounts owing to the Auctioneer by that person have been paid in full.
7.1.12. No Seller may bid, or instruct, or permit any other person to bid on the Seller’s behalf, in respect of his own Lot. If the Seller is in breach of this provision, the Auctioneer reserves the right to treat the Seller as bound as both Seller and Buyer, but without the benefit of the reserve price (if any) or the authenticity guarantee.
7.1.13. An auction is complete when the Auctioneer signifies its completion by the fall of the hammer.
7.1.14. In the event of any dispute over any aspect of bidding, the Auctioneer shall have absolute discretion to settle such dispute.
7.2. Commission Bids
7.2.1. The Auctioneer may, if instructed to do so on clear terms, execute bids on behalf of a Buyer up to the maximum bid specified by the Buyer.
7.2.2. Commission bids must be received by the Auctioneer no later than 9am on the date of the auction.
7.2.3. The amount of a commission bid does not include the Buyer’s premium (as set out in clause 8).
7.2.4. Where two or more commission bids are received for a Lot, the Auctioneer reserves the right to give priority to the first recorded bid.
7.2.5. The Auctioneer accepts no responsibility for failing to execute a commission bid, or for any error in connection with the execution of a commission bid.
7.3. Telephone Bids
7.3.1. The Auctioneer may, subject to the availability of a telephone line, allow a Bidder to participate in an auction by telephone.
7.3.2. Requests to participate in an auction by telephone must be received by the Auctioneer no later than 9am on the date of the auction.
7.3.3. Telephone Bidders must supply two valid phone numbers to the Auctioneer.
7.3.4. The Auctioneer accepts no responsibility for failing to execute a telephone bid, or for any error in connection with the execution of a telephone bid.
7.4. On-line Bids
7.4.1. Bidders may participate in an auction online, in real time, using the Auctioneers live auctions website.
7.4.2. Bidders must register online, no later than 9am on the day of the auction. Identification details and credit card details will be required to register for online bidding. The Auctioneer reserves the right to approve or otherwise bidders for online auctions.
7.4.3. Lots purchased online are subject to an additional charge, equal to 3% of the Hammer Price, plus VAT.
7.4.4. Payment for Lots purchased online must be made immediately following the auction, using the credit card details submitted during registration.
7.4.5. Bidders are required to read the terms and conditions of ATG Media, which can be found at www.the-saleroom.com. Bidding using this service is the responsibility of the Buyer and clicking the ‘bid’ button is a commitment to buy and pay in full the relevant Lot.
7.4.6. The Auctioneer will not be held responsible for failure of the online bidding service or for incorrect information provided by the-saleroom.com.
The Buyer shall be liable to pay the Hammer Price plus a premium of 20% of the Hammer Price in respect of a Lot.
9. RESERVE PRICE
9.1. The Seller and the Auctioneer may agree a reserve price in respect of any Lot in advance of the auction.
9.2. The reserve price will not be disclosed to Bidders.
9.3. Where the highest accepted bid for a Lot does not equal or exceed the reserve price, the Lot will be deemed not to have been sold, and clause 18 will apply.
9.4. Unless otherwise agreed by the Seller and the Auctioneer, all Lots will be sold without a reserve price.
10.1. Value Added Tax at the then prevailing rate shall be applied to the Hammer Price (if applicable) and the Buyer’s premium set out in clause 8.
10.2. Lots which are subject to VAT will be marked with * in the catalogue.
11. PAYMENT BY THE BUYER
11.1. Upon the fall of the hammer the Buyer must present his/her buyer number to the Auctioneer and any employee of the Auctioneer who requests it, and if requested to do so must immediately pay to the Auctioneer such proportion of the Hammer Price as the Auctioneer may require.
11.2. Payment of the Hammer Price (plus VAT, if applicable) and the premium (plus VAT) shall be made in full by the Buyer on the date of purchase (for a General Auction) or within three (3) Business Days (for a Specialist Auction).
11.3. Payment may be made by the following methods:
11.3.1. cash, up to £9,000;
11.3.2. credit, debit or switch card (other than American Express), subject to a 2.7% surcharge, and provided the Buyer is present at the time of the card transaction;
11.3.3. bank transfer; or
11.3.4. cheque, provided that it is accompanied by a cheque guarantee card. Where there is no cheque guarantee card, or the value of the cheque is not covered by the cheque guarantee card, the purchased goods will not be released until the cheque has cleared.
11.4. Payment must be made by the registered Buyer. Payments will not be accepted from any third party.
12. TITLE/ RISK/ COLLECTION
12.1. Title to the Lot shall pass to the Buyer when payment has been received in full by the Auctioneer.
12.2. Risk of loss or damage to the Lot shall pass to the Buyer on completion of auction.
12.3. The Buyer shall, at his sole risk and expense, collect the Lots which he has purchased within five (5) Business Days after the auction. Notwithstanding the foregoing, where the auction was a General Auction, the Buyer shall, at his sole risk and expense, collect the Lots which he has purchased within twenty-four (24) hours.
12.4. Notwithstanding clause 12.3, no purchase can be claimed or removed until payment has been received by the Auctioneer in cleared funds.
12.5. Subject to clause 12.6, purchases will be released only to the registered Buyer.
12.6. Purchases may be released to a commercial courier or carrier, provided that the Auctioneer has received written instruction to release the purchases to such courier or carrier reasonably in advance of the collection, and the Auctioneer has acknowledged and agreed to such instruction in writing.
12.7. On written request form the Buyer, the Auctioneer may arrange postage and packing of the purchases. The cost for such postage and packing services will be notified to the Buyer by the Auctioneer prior to posting.
13. REMEDIES FOR NON-PAYMENT OR FAILURE TO COLLECT
13.1. Where any Lot is not paid for in full, or has not been collected, within five (5) Business Days from the date of the auction, the Buyer shall be deemed to have received notice of the Auctioneers intention to re-sell the Lot in terms of Section 48(3) of the Sale of Goods Act 1979.
13.2. If at the expiry of a period of five (5) Business Days the Auctioneer has not received payment of all sums due from the Buyer in payment for the Lot, the Auctioneer may re-offer the Lot for auction. If upon such a re-sale a lower price is obtained for any such Lots than was obtained on the first sale, the difference in price shall be a debt due from the Buyer to the Auctioneer.
13.3. Interest shall be charged at Bank of Scotland Base Lending Rate on any purchase monies outstanding from the date five (5) Business Days after the date of the auction until the goods are re-sold.
13.4. Where any Lot has not been collected by the Buyer within the time periods set out in Clause 12.3, the Auctioneer reserves the right to hold the Buyer liable for storage charges at a rate of £1 per item per day, plus VAT, until such goods are either re- sold or collected.
14. PAYMENT TO THE SELLER
14.1. The Seller shall be liable to the Auctioneer for a commission of 15% of the Hammer Price plus VAT thereon.
14.2. Subject to receiving full payment, in cleared funds, from the Buyer, the Auctioneer will pay to the Seller the Hammer Price, less all applicable commission, costs, fees and charges (as applicable) within five (5) Business Days of the auction.
15. STORAGE OF ITEMS
15.1. The Auctioneer shall have no liability for any loss or damage to any Lot(s) which are being stored by the Auctioneer, whether before or after auction.
15.2. Responsibility for, and risk in respect of, any good(s) held by the Auctioneer after the auction, whether or not payment has been received, in full or in part, lies solely with the Buyer.
15.3. Unless otherwise instructed in writing, all goods on the premises of the Auctioneer and in its custody shall be insured against the risks of fire, burglary and water damage (but not accidental damage or breakage). The value of goods so insured shall be the gross amount realised (in respect of sold Lots) or the highest bid made or the reserve price (in the case of unsold Lots) or the Auctioneer’s estimated value (in the case of Lots which have been withdrawn or are awaiting auction).
16. DROIT DE SUITE
16.1. Certain Lots will incur a Droit de Suite charge if the Hammer Price exceeds 1000
Euros. This will be indicated in the Catalogue with the * symbol.
16.2. To determine whether the Droit de Suite royalty applies, the Hammer Price will be converted to Euro at the rate of exchange of the European Central Bank on the date of the auction.
16.3. Where Droit de Suite applies, a royalty of 4% of the Hammer Price will be charged to the Buyer in addition to the Buyer’s premium.
16.4. The Droit de Suite royalty is not subject to VAT.
16.5. All Droit de Suite royalty charges are paid to the Design and Artists Copyrights Society (DACS) and no handling costs or additional fees are retained by the Auctioneer.
17. AUTHENTICITY GUARANTEE
17.1. Where a Buyer has reason to believe that any Lot is a deliberate forgery, the Buyer shall notify the Auctioneer of such belief within five (5) Business Days after the auction and shall return the Lot to the Auctioneer within five (5) Business Days of that notice, in the same condition as at the time of the auction.
17.2. If the Buyer produces evidence sufficient to satisfy the Auctioneer that the Lot is a deliberate forgery, the Auctioneer will rescind the sale. The Auctioneer will refund to the Buyer the price paid and the Seller shall indemnify and hold harmless the Auctioneer in respect of such liability. The burden of proof in respect of this clause 17.2 is on the Buyer.
17.3. For the purposes of this clause 17, ‘deliberate forgery’ means a Lot submitted with the intention to deceive as to authorship, origin, date, age, period, culture or source, and which, when considered in the light of the catalogue description, had a value substantially less than it would have had had it been in accordance with that description on the date of the auction. Notwithstanding the foregoing, there will not be deemed to have been a deliberate forgery where the catalogue description was in accordance with the general opinion of experts, or which fairly disclosed a conflict of opinion or doubt as to the authorship, origin, date, age, period, culture or source.
18. UNSOLD ITEMS
18.1. Any Lots which do not sell in the first auction in which they are placed will automatically be entered into a future auction.
18.2. The estimate or reserve price (as applicable) for such Lots will be reduced by 25% for the second auction.
18.3. Where the Seller does not want the Lots to be entered into a second auction with a reduced estimate or reserve price, the Seller shall notify the Auctioneer within forty- eight (48) hours of the first auction to confirm that he will collect the Lot within five (5) Business Days of the date of the first auction.
18.4. Where the Seller does not collect the unsold lot within five (5) Business Days of the first auction, the Auctioneer reserves the right to charge the Seller a storage charge of £1 per item per day, plus VAT.
19. WITHDRAWAL OF LOTS
19.1. If the Seller wishes to withdraw a Lot prior to the auction, a withdrawal fee of 15% of the mid-estimate will apply. In addition, the Seller will reimburse the Auctioneer for all costs incurred in the cataloguing and marketing of the Lot.
19.2. The Auctioneer may withdraw a Lot prior to the auction, without liability, in the following cases:
19.2.1. the Auctioneer reasonably believes that there is doubt as the Lot’s authenticity;
19.2.2. the Auctioneer reasonably doubts the accuracy of the Seller’s warranties;
19.2.3. the Lot suffers loss or damage and is no longer fit for sale.
19.3. In the event of withdrawal of the Lot under clauses 19.2.1 or 19.2.2 above, the withdrawal fee set out in clause 19.1 will apply as though the Lot was withdrawn by the Seller.
20.1. Several countries prohibit the importation of property containing materials from endangered species, such as rhino horn, ivory, coral and tortoiseshell. If you are interested in bidding on a Lot containing these materials and you wish to export please make sure you are familiar with all relevant customs regulations prior to bidding. It is the Buyer’s sole responsibility to obtain any relevant export or import licence.
20.2. Please be aware that Lots marked with the symbol Y may be subject to CITES regulations when exporting outside the European Union. For more information please visit www.defra.gov.uk/ahvla-en/imports-exports/cites.
20.3. The Auctioneer accepts no liability for any Lot which may be subject to CITES but which has not been identified as such.
20.4. The Auctioneer reserves the right to refuse to accept for consignment any item which it believes, in its absolute discretion, may contravene CITES.
21.1. The Auctioneer reserves the right to refuse access to its premises or attendance at its auctions to any person, in its sole discretion.
21.2. Should any provision of these Terms be held to be invalid, illegal or unenforceable for any reason, the other provisions of these Terms shall remain in full force and effect.
21.3. The Auctioneer may ask Bidders and/or Sellers to provide personal information, or may obtain personal information about Buyers and/or Sellers from third parties in the course of the operation of the Auctioneer’s business. The Auctioneer will not disclose any such personal information except if and to the extent required by law.
21.4. All notices to be sent to the Auctioneer must be in writing, which does not include e- mail. All notices to be sent to any Bidder, Buyer or Seller shall be given by first class mail or e-mail and shall be deemed to have been received forth-eight (48) hours after sending.
22. GOVERNING LAW AND JURISDICTION
22.1. These Terms and all aspects of all matters, transactions or disputes to which they relate or apply shall be governed by, and interpreted in accordance with, the laws of Scotland.
22.2. The courts of Scotland shall have exclusive jurisdiction to settle all disputes arising out of, or in connection with, all aspects of all matters or transactions to which these Terms relate or apply.