Auction Terms & Conditions Of Business

These Terms and Conditions of Business represent the terms upon which the Auction House contracts with the Consignor and, acting in its capacity as agent on behalf of the Consignor, contracts with the Buyer. These Terms and Conditions of Business shall apply to the sale of the Lot by the Auction House to the Buyer on behalf of the Consignor, and shall supersede and take precedence over any previously agreed Terms and Conditions of Business. These Terms and Conditions of Business are hereby incorporated into and form part of the Consignment Agreement entered into by the Auction House and the Consignor.

A.

DEFINED TERMS:

1.

Auction House
The Auction House is Heffel Fine Art Auction House, a division of Heffel Gallery Limited, or an affiliated entity;

2.

Consignor
The Consignor is the person or entity named in the Consignment Agreement as the source from which the Property or Lot has been received for auction;

3.

Seller's Commission
The Seller's Commission is the amount paid by the Consignor to the Auction House on the sale of a Lot, that is calculated on the Hammer Price, at the rates specified in writing by the Consignor and the Auction House on the Consignment Agreement Form, plus applicable Sales Tax;

4.

Property
The Property is any Property delivered by the Consignor to the Auction House to be placed in the auction sale held by the Auction House on its premises, online or elsewhere and, specifically, that Property described by Lot number in the Auction House catalogue for the auction sale. The Auction House will have the authority to partition the Property into Lots (the “Lots” or “Lot”);

5.

Reserve
The reserve is a minimum price for the sale of the Lot, agreed to between the Consignor and the Auction House;

6.

Knocked Down
Knocked Down means the conclusion of the sale of the Lot being auctioned by the Auctioneer;

7.

Expenses
Expenses shall include all costs incurred, directly or indirectly, in relation to the consignment and sale of the Lot;

8.

Hammer Price
The Hammer Price is the price at which the Auctioneer has Knocked Down the Lot to the Buyer;

9.

Buyer
The Buyer is the person, corporation or other entity or such entity’s agent, who bids successfully on the Lot at the auction sale;

10.

Purchase Price
The Purchase Price is the Hammer Price and the Buyer’s Premium, applicable Sales Tax and additional charges and Expenses including expenses due from a defaulting Buyer;

11.

Buyer’s Premium
The Buyer’s Premium is calculated at a rate of twenty-five percent (25%) of the Hammer Price of the Lot up to and including $25,000; plus twenty percent (20%) on the part of the Hammer Price over $25,000 and up to and including $5,000,000; plus fifteen percent (15%) on the part of the Hammer Price over $5,000,000, plus applicable sale tax.

12.

Sales Tax
Sales Tax means the Federal and Provincial sales and excise taxes applicable in the jurisdiction of sale of the Lot;

13.

Registered Bidder
A Registered Bidder is a bidder who has fully completed the registration process, provided the required information to the Auction House and has been assigned a unique paddle number for the purpose of bidding on Lots in the auction.

14.

Proceeds of Sale
The Proceeds of Sale are the net amount due to the Consignor from the Auction House, which shall be the Hammer Price less Seller's Commission at the Published Rates and Expenses and any other amounts due to the Auction House or associated companies;

15.

Live and Online Auctions
These Terms and Conditions of Business apply to all live and online auction sales conducted by the Auction House. For the purposes of online auctions, all references to the Auctioneer shall mean the Auction House and Knocked Down is a literal reference defining the close of the auction sale.

B.

THE BUYER:

1.

The Auction House
The Auction House acts solely as agent for the Consignor, except as otherwise provided herein.

2.

The Buyer

a)  The highest Registered Bidder acknowledged by the Auctioneer as the highest bidder at the time the Lot is Knocked Down;

b)  The Auctioneer has the right, at his sole discretion, to reopen a Lot if he has inadvertently missed a Bid, or if a Registered Bidder, immediately at the close of a Lot, notifies the Auctioneer of his intent to Bid;

c)  The Auctioneer shall have the right to regulate and control the bidding and to advance the bids in whatever intervals he considers appropriate for the Lot in question;

d)  The Auction House shall have absolute discretion in settling any dispute in determining the successful bidder;

e)  The Buyer acknowledges that invoices generated during the sale or shortly after may not be error free, and therefore are subject to review;

f)  Every Registered Bidder shall be deemed to act as principal unless the Auction House has acknowledged in writing at least twenty-four hours (24) prior to the date of the auction that the Registered Bidder is acting as an agent on behalf of a disclosed principal and such agency relationship is acceptable to the Auction House;

g)  Every Registered Bidder shall fully complete the registration process and provide the required information to the Auction House. Every Registered Bidder will be assigned a unique paddle number (the “Paddle”) for the purpose of bidding on Lots in the auction. For online auctions, a password will be created for use in the current and future online sales only. This online registration procedure may require up to twenty-four (24) hours to complete.;

h)  Every Registered Bidder acknowledges that once a bid is made with his Paddle, or Paddle and password, as the case may be, it may not be withdrawn without the consent of the Auctioneer who, in his sole discretion, may refuse such consent; and

i)  Every Registered Bidder agrees that if a Lot is Knocked Down on his bid, he is bound to purchase the Lot for the Purchase Price.

3.

Buyer’s Price
The Buyer shall pay the Purchase Price (inclusive of the Buyer’s Premium) to the Auction House. The Buyer acknowledges and agrees that the Auction House may also receive a Seller's Commission.

4.

Sales Tax Exemption
All or part of the Sales Tax may be exempt in certain circumstances if the Lot is delivered or otherwise removed from the jurisdiction of sale of the Lot. It is the Buyer’s obligation to demonstrate, to the satisfaction of the Auction House, that such delivery or removal results in an exemption from the relevant Sales Tax legislation. Shipments out of the jurisdiction of sale of the Lot(s) shall only be eligible for exemption from Sales Tax if shipped directly from the Auction House and appropriate delivery documentation is provided, in advance, to the Auction House. All claims for Sales Tax exemption must be made prior to or at the time of payment of the Purchase Price. Sales Tax will not be refunded once the Auction House has released the Lot.

5.

Payment of the Purchase Price

a)  The Buyer shall:

(i)  Unless he has already done so, provide the Auction House with his name, address and banking or other suitable references as may be required by the Auction House; and

(ii)  Payment must be made by 4:30 p.m. on the seventh (7th) day following the auction by: a) Bank Wire direct to the Auction House’s account, b) Certified Cheque or Bank Draft or c) a Personal or Corporate Cheque. All Certified Cheques, Bank Drafts and Personal or Corporate Cheques must be verified and cleared by the Auction House’s bank prior to all purchases being released. The Auction House honours payment by Debit Card or by Credit Card limited to VISA or MasterCard. Credit Card payments are subject to acceptance and approval by the Auction House and to a maximum of $5,000 if the Buyer is providing his Credit Card details by fax, or to a maximum of $25,000 if the Credit Card is presented in person with valid identification. Such Credit Card payment limits apply to the value of the total purchases made by the Buyer and will not be calculated on individual transactions for separate Lots. In all circumstances, the Auction House prefers payment by Bank Wire transfer.

b)  Title shall pass, and release and/or delivery of the Lot shall occur, only upon payment of the Purchase Price by the Buyer to the Auction House.

6.

Descriptions of Lot

a)  All representations or statements made by the Auction House, or in the Consignment Agreement, or in the catalogue or other publication or report, as to the authorship, origin, date, age, size, medium, attribution, genuineness, provenance, condition or estimated selling price of the Lot, are statements of opinion only. The Buyer agrees that the Auction House shall not be liable for any errors or omissions in the catalogue or any supplementary material produced by the Auction House;

b)  All photographic representations and other illustrations presented in the catalogue are solely for guidance and are not to be relied upon in terms of tone or colour or necessarily to reveal any imperfections in the Lot;

c)  Many Lots are of an age or nature which precludes them from being in pristine condition. Some descriptions in the catalogue or given by way of condition report make reference to damage and/or restoration. Such information is given for guidance only and the absence of such a reference does not imply that a Lot is free from defects, nor does any reference to particular defects imply the absence of others;

d)  The prospective Buyer must satisfy himself as to all matters referred to in a), b) and c) of this paragraph by inspection, other investigation or otherwise prior to the sale of the Lot. If the prospective Buyer is unable to personally view any Lot, the Auction House may, upon request, e-mail or fax a condition report describing the Lot to the prospective Buyer. Although the Auction House takes great care in executing such condition reports in both written and verbal format, condition reports are only matters of opinion, are non-exhaustive, and the Buyer agrees that the Auction House shall not be held responsible for any errors or omissions contained within. The Buyer shall be responsible for ascertaining the condition of the Lot; and

e)  The Auction House makes no representations or warranties to the Buyer that the Buyer of a Lot will acquire any copyright or other reproduction right in any purchased Lot.

7.

Purchased Lot

a)  The Buyer shall collect the Lot from the Auction House by 4:30 p.m. on the seventh (7th) day following the date of the auction sale, after which date the Buyer shall be responsible for all Expenses until the date the Lot is removed from the offices of the Auction House;

b)  All packing, handling and shipping of any Lot by the Auction House is undertaken solely as a courtesy service to the Buyer, and will only be undertaken at the discretion of the Auction House and at the Buyer’s risk. Prior to all packing and shipping, the Auction House must receive a fully completed and signed Shipping Form and payment in full of all purchases; and

c)  The Auction House shall not be liable for any damage to glass or frames of the Lot and shall not be liable for any errors or omissions or damage caused by packers and shippers, whether or not such agent was recommended by the Auction House.

8.

Risk

a)  The purchased Lot shall be at the Consignor’s risk in all respects for seven (7) days after the auction sale, after which the Lot will be at the Buyer’s risk. The Buyer may arrange insurance coverage through the Auction House at the then prevailing rates and subject to the then existing policy.

b)  Neither the Auction House nor its employees nor its agents shall be liable for any loss or damage of any kind to the Lot, whether caused by negligence or otherwise, while any Lot is in or under the custody or control of the Auction House.

9.

Non-payment and Failure to Collect Lot(s)

If the Buyer fails either to pay for or to take away any Lot by 4:30 p.m. on the seventh (7th) day following the date of the auction sale, the Auction House may in its absolute discretion be entitled to one or more of the following remedies without providing further notice to the Buyer and without prejudice to any other rights or remedies the Auction House may have:

a)  To issue judicial proceedings against the Buyer for damages for breach of contract together with the costs of such proceedings on a full indemnity basis;

b)  To rescind the sale of that or any other Lot(s) sold to the Buyer;

c)  To resell the Lot or cause it to be resold by public or private sale, or by way of live or online auction, with any deficiency to be claimed from the Buyer and any surplus, after Expenses, to be delivered to the Buyer;

d)  To store the Lot on the premises of the Auction House or third party storage facilities with Expenses accruing to the account of the Buyer, and to release the Lot to the Buyer only after payment of the Purchase Price and Expenses to the Auction House;

e)  To charge interest on the Purchase Price at the rate of five percent (5%) per month above the Royal Bank of Canada base rate at the time of the auction sale and adjusted month to month thereafter;

f)  To retain that or any other Lot sold to the Buyer at the same or any other auction and release the same only after payment of the aggregate outstanding Purchase Price;

g)  To apply any Proceeds of Sale of any Lot then due or at any time thereafter becoming due to the Buyer towards settlement of the Purchase Price, and the Auction House shall be entitled to a lien on any other property of the Buyer which is in the Auction House’s possession for any purpose;

h)  To apply any payments made by the Buyer to the Auction House towards any sums owing from the Buyer to the Auction House without regard to any directions received from the Buyer or his agent, whether express or implied; and

i)  In the absolute discretion of the Auction House, to refuse or revoke the Buyer’s registration in any future auctions held by the Auction House.

10.

Guarantee

The Auction House, its employees and agents, shall not be responsible for the correctness of any statement as to the authorship, origin, date, age, size, medium, attribution, genuineness or provenance of any Lot or for any other errors of description or for any faults or defects in any Lot and no warranty whatsoever is given by the Auction House, its employees or agents in respect of any Lot and any express or implied conditions or warranties are hereby excluded.

11.

Attendance by Buyer

a)  Prospective Buyers are advised to inspect the Lot(s) before the sale, and to satisfy themselves as to the description, attribution and condition of each Lot. The Auction House will arrange suitable viewing conditions during the preview preceding the sale, or by private appointment;

b)  Prospective Buyers are advised to personally attend the sale. However, if they are unable to attend, the Auction House will execute bids on their behalf subject to completion of the proper Absentee Bid Form, duly signed and delivered to the Auction House forty-eight (48) hours before the start of the auction sale. The Auction House shall not be responsible nor liable in the making of any such bid by its employees or agents;

c)  In the event that the Auction House has received more than one Absentee Bid Form on a Lot for an identical amount and at auction those absentee bids are the highest bids for that Lot, the Lot shall be Knocked Down to the person whose Absentee Bid Form was received first; and

d)  At the discretion of the Auction House, the Auction House may execute bids, if appropriately instructed by telephone, on behalf of the prospective Buyer, and the prospective Buyer hereby agrees that neither the Auction House nor its employees nor agents shall be liable to either the Buyer or the Consignor for any neglect or default in making such a bid.

12.

Export Permits

Without limitation, the Buyer acknowledges that certain property of Canadian cultural importance sold by the Auction House may be subject to the provisions of the Cultural Property Export and Import Act (Canada), and that compliance with the provisions of the said act is the sole responsibility of the Buyer.

C.

THE CONSIGNOR:

1.

The Auction House

a)  The Auction House shall have absolute discretion as to whether the Lot is suitable for sale, the particular auction sale for the Lot, the date of the auction sale, the manner in which the auction sale is conducted, the catalogue descriptions of the Lot, and any other matters related to the sale of the Lot at the auction sale;

b)  The Auction House reserves the right to withdraw any Lot at any time prior to the auction sale if, in the sole discretion of the Auction House:

(i)  there is doubt as to its authenticity;

(ii)  there is doubt as to the accuracy of any of the Consignor’s representations or warranties;

(iii)  the Consignor has breached or is about to breach any provisions of the Consignment Agreement; or

(iv)  any other just cause exists.

c)  In the event of a withdrawal pursuant to Conditions C.1.b (ii) or C.1.b (iii), the Consignor shall pay a charge to the Auction House, as provided in Condition C.8.

2.

Warranties and Indemnities

a)  The Consignor warrants to the Auction House and to the Buyer that the Consignor has and shall be able to deliver unencumbered title to the Lot, free and clear of all claims;

b)  The Consignor shall indemnify the Auction House, its employees and agents and the Buyer against all claims made or proceedings brought by persons entitled or purporting to be entitled to the Lot;

c)  The Consignor shall indemnify the Auction House, its employees and agents and the Buyer against all claims made or proceedings brought due to any default of the Consignor in complying with any applicable legislation, regulations and these Terms and Conditions of Business; and

d)  The Consignor shall reimburse the Auction House in full and on demand for all Expenses or any other loss or damage whatsoever made, incurred or suffered as a result of any breach by the Consignor of Conditions C.2.a and/or C.2.c above.

3.

Reserves

a)  The Auction House is authorized by the Consignor to Knock Down a Lot at less than the Reserve, provided that, for the purposes of calculating the Proceeds of Sale due to the Consignor, the Hammer Price shall be deemed to be the full amount of the agreed Reserve established by the Auction House and the Consignor.

4.

Commission and Expenses

a)  The Consignor authorizes the Auction House to deduct the Seller's Commission and Expenses from the Hammer Price and, notwithstanding that the Auction House is the Consignor’s agent, acknowledges that the Auction House shall charge and retain the Buyer’s Premium;

b)  The Consignor shall pay and authorizes the Auction House to deduct all Expenses incurred on behalf of the Consignor, together with any Sales Tax thereon; and

c)   The Auction House retains all rights to photographic and printing material and the right of reproduction of such photographs.

5.

Insurance

a)  Lots are only covered by insurance under the Fine Arts Insurance Policy of the Auction House if the Consignor so authorizes;

b)  The rate of insurance premium payable by the Consignor is $15 per $1,000 (01.5%) of the greater value of the high estimate value of the Lot or the realized Hammer Price or for the alternative amount as specified in the Consignment Receipt;

c)  If the Consignor instructs the Auction House not to insure a Lot, it shall at all times remain at the risk of the Consignor who hereby undertakes to:

(i)  indemnify the Auction House against all claims made or proceedings brought against the Auction House in respect of loss or damage to the Lot of whatever nature, howsoever and wheresoever occurred, and in any circumstances even where negligence is alleged or proven;

(ii)  reimburse the Auction House for all Expenses incurred by the Auction House. Any payment which the Auction House shall make in respect of such loss or damage or Expenses shall be binding upon the Consignor and shall be accepted by the Consignor as conclusive evidence that the Auction House was liable to make such payment; and

(iii)  notify any insurer of the existence of the indemnity contained in these Terms and Conditions of Business;

d)  The Auction House does not accept responsibility for Lots damaged by changes in atmospheric conditions and the Auction House shall not be liable for such damage nor for any other damage to picture frames or to glass in picture frames; and

e)  The value for which a Lot is insured under the Fine Arts Policy of the Auction House in accordance with Condition C.5.b above shall be the total amount due to the Consignor in the event of a successful claim being made against the Auction House.

6.

Payment of Proceeds of Sale

a)  The Auction House shall pay the Proceeds of Sale to the Consignor thirty-five (35) days after the date of sale, if the Auction House has been paid the Purchase Price in full by the Buyer;

b)  If the Auction House has not received the Purchase Price from the Buyer within the time period specified, then the Auction House will pay the Proceeds of Sale within seven (7) working days following receipt of the Purchase Price from the Buyer; and

c)  If before the Purchase Price is paid in full by the Buyer, the Auction House pays the Consignor an amount equal to the Proceeds of Sale, title to the property in the Lot shall pass to the Auction House.

7.

Collection of the Purchase Price

If the Buyer fails to pay to the Auction House the Purchase Price within thirty (30) days after the date of sale, the Auction House will endeavour to take the Consignor’s instructions as to the appropriate course of action to be taken and, so far as in the Auction House’s opinion such instructions are practicable, will assist the Consignor in recovering the Purchase Price from the Buyer, save that the Auction House shall not be obligated to issue judicial proceedings against the Buyer in its own name. Notwithstanding the foregoing, the Auction House reserves the right and is hereby authorized at the Consignor’s expense, and in each case at the absolute discretion of the Auction House, to agree to special terms for payment of the Purchase Price, to remove, store and insure the Lot sold, to settle claims made by or against the Buyer on such terms as the Auction House shall think fit, to take such steps as are necessary to collect monies from the Buyer to the Consignor and, if appropriate, to set aside the sale and refund money to the Buyer.

8.

Charges for Withdrawn Lots

The Consignor may not withdraw a Lot prior to the auction sale without the consent of the Auction House. In the event that such consent is given, or in the event of a withdrawal pursuant to Condition C.1.b (ii) or C.1.b (iii), a charge of twenty-five percent (25%) of the high pre-sale estimate, together with any applicable Sales Tax and Expenses, is immediately payable to the Auction House, prior to any release of the Property.

9.

Unsold Lots

a)  Unsold Lots must be collected at the Consignor’s expense within the period of ninety (90) days after receipt by the Consignor of notice from the Auction House that the Lots are to be collected (the “Collection Notice”). Should the Consignor fail to collect the Lot from the Auction House within ninety (90) days from the receipt of the Collection Notice, the Auction House shall have the right to place such Lots in the Auction House’s storage facilities or third party storage facilities, with Expenses accruing to the account of the Consignor. The Auction House shall also have the right to sell such Lots by public or private sale and on such terms as the Auction House shall alone determine, and shall deduct from the Proceeds of Sale any sum owing to the Auction House or to any associated company of the Auction House including Expenses, before remitting the balance to the Consignor. If the Consignor cannot be traced, the Auction House shall place the funds in a bank account in the name of the Auction House for the Consignor. In this condition the expression “Proceeds of Sale” shall have the same meaning in relation to a private sale as it has in relation to a sale by auction;

b)  Lots returned at the Consignor’s request shall be returned at the Consignor’s risk and expense and will not be insured in transit unless the Auction House is otherwise instructed by the Consignor; and

c)  If any Lot is unsold by auction, the Auction House is authorized as the exclusive agent for the Consignor for a period of ninety (90) days following the auction to sell such Lot by private sale or auction sale for a price that will result in a payment to the Consignor of not less than the net amount (i.e., after deduction of the Seller's Commission and Expenses) to which the Consignor would have been entitled had the Lot been sold at a price equal to the agreed Reserve, or for such lesser amount as the Auction House and the Consignor shall agree. In such event, the Consignor’s obligations to the Auction House hereunder with respect to such a Lot are the same as if it had been sold at auction. The Auction House shall continue to have the exclusive right to sell any unsold Lots after the said ninety (90) day period, until such time as the Auction House is notified in writing by the Consignor that such right is terminated.

10.

Consignor's Sales Tax Status

The Consignor shall give to the Auction House all relevant information as to his Sales Tax status with regard to the Lot to be sold, which he warrants is and will be correct and upon which the Auction House shall be entitled to rely.

11.

Photographs and Illustrations

In consideration of the Auction House’s services to the Consignor, the Consignor hereby warrants and represents to the Auction House that it has the right to grant to the Auction House, and the Consignor does hereby grant to the Auction House, a non-exclusive, perpetual, fully paid-up, royalty free and non-revocable right and permission to:

a)  reproduce (by illustration, photograph, electronic reproduction, or any other form or medium whether presently known or hereinafter devised) any work within any Lot given to the Auction House for sale by the Consignor; and

b)  use and publish such illustration, photograph or other reproduction in connection with the public exhibition, promotion and sale of the Lot in question and otherwise in connection with the operation of the Auction House’s business, including without limitation by including the illustration, photograph or other reproduction in promotional catalogues, compilations, the Auction House’s Art Index, and other publications and materials distributed to the public, and by communicating the illustration, photograph or other reproduction to the public by telecommunication via an Internet website operated by or affiliated with the Auction House (“Permission”). Moreover, the Consignor makes the same warranty and representation and grants the same Permission to the Auction House in respect of any illustrations, photographs or other reproductions of any work provided to the Auction House by the Consignor. The Consignor agrees to fully indemnify the Auction House and hold it harmless from any damages caused to the Auction House by reason of any breach by the Consignor of this warranty and representation.

D.

GENERAL CONDITIONS:

1.

The Auction House as agent for the Consignor is not responsible for any default by the Consignor or the Buyer.

2.

The Auction House shall have the right at its absolute discretion to refuse admission to its premises or attendance at its auctions by any person.

3.

The Auction House has the right at its absolute discretion to refuse any bid, to advance the bidding as it may decide, to withdraw or divide any Lot, to combine any two or more Lots and, in the case of dispute, to put up any Lot for auction again. At no time, shall a Registered Bidder retract or withdraw his bid.

4.

For advertising and promotional purposes, the Consignor acknowledges and agrees that the Auction House shall, in relation to any sale of the Lot, make reference to the aggregate Purchase Price of the Lot, inclusive of the Buyer’s Premium, notwithstanding that the Seller's Commission is calculated on the Hammer Price.

5.

Any indemnity hereunder shall extend to all actions, proceedings, costs, claims and demands whatsoever incurred or suffered by the person for whose benefit the indemnity is given and, the Auction House shall hold any indemnity on trust for its employees and agents where it is expressed to be for their benefit.

6.

Any notice given hereunder shall be in writing and if given by post shall be deemed to have been duly received by the addressee within three (3) business days.

7.

The copyright for all illustrations and written matter relating to the Lots shall be and will remain at all times the absolute property of the Auction House and shall not, without the prior written consent of the Auction House, be used by any other person.

8.

The Auction House will not accept any liability for any errors that may occur in the operation of any video or digital representations produced and/or broadcasted during an auction sale.

9.

This Agreement shall be governed by and construed in accordance with British Columbia Law and the laws of Canada applicable therein and all parties concerned hereby submit to the exclusive jurisdiction of the British Columbia Courts.

10.

Unless otherwise provided for herein, all monetary amounts referred to herein shall refer to the lawful money of Canada.

11.

All words importing the singular number shall include the plural and vice versa, and words importing the use of any gender shall include the masculine, feminine and neuter genders and the word “person” shall include an individual, a trust, a partnership, a body corporate, an association or other incorporated or unincorporated organization or entity.

12.

If any provision of this Agreement or the application thereof to any circumstances shall be held to be invalid or unenforceable, the remaining provisions of this Agreement, or the application thereof to other circumstances, shall not be affected thereby and shall be held valid to the full extent permitted by law.

Version 2014.04,
© Copyright Heffel Gallery Limited

Heffel's Code Of Business Conduct, Ethics And Practices

Property Collection Notice


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