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SERVICES
Conditions of Business
Chapter I General Provisions
Article 1 Governing Laws
This Conditions of Business (hereinafter referred to as the “Conditions”) is made in accordance with the Auction Law of the People’s Republic of China, other relevant Laws implemented in the People’s Republic of China and the Articles of Association of the Company and with reference to international general practices.
Article 2 Definitions and Interpretation
The capitalized terms used in the Conditions shall have the following meanings:
(1) “We/Us/Our/Company” means China Guardian Auctions Co., Ltd.
(2) “Company’s Domicile” means 3/F, Office Area, Guardian Art Center, No.1 Wangfujing Street, Dongcheng District, Beijing, People’s Republic of China, as may be subsequently changed and registered with the authorities in charge of industry and commerce administration.
(3) “Seller” means a natural person, legal person or any other organization that consigns the Lot to the Company for auction in accordance with the Conditions. Under the Conditions, any reference to the Seller shall include reference to any of his/her/its agents unless otherwise provided hereunder or in a particular context.
(4) “Bidder” means a natural person, legal person or any other organization that has full capacity of civil rights to bid for the Lot in auctions according to provisions of the Laws of People’s Republic of China and who has gone through the registration and necessary procedural formalities with the Company. Any Bidder shall satisfy all provisions with respect to conditions of sale or qualifications of the Bidders if required by Laws. Under the Conditions, any reference to a Bidder shall include reference to any of his/her/its agents unless otherwise provided hereunder or in a particular context.
(5) “Buyer” means the Bidder who purchases the Lot with the highest bid in an auction held by the Company, provided however that if a state-owned cultural heritage collection entity appointed by the authorities in charge of cultural heritage administration successfully exercise its state pre-emptive right of purchase within the time period provided in the relevant Laws and rules of the Company, then under such circumstances, the state-owned cultural heritage collection entity shall be the Buyer.
(6) “Lot” means any item owned by the Seller or disposable according to the Laws that is consigned to the Company for auction.
(7) “Auction Date” means the published date on which the auction will formally begin. In case of any discrepancy between the actual date and the published date of an auction, the actual date shall prevail.
(8) “Sale Date” means the date on which the auctioneer confirms the sale of any Lot in the auction by dropping his/her hammer or in any other public manner during an auction held by the Company.
(9) “Hammer Price” means the price for selling the Lot to the Buyer which is confirmed by the auctioneer by dropping the hammer or in any other public manner.
(10) “Proceeds of Sale” means the net amount owed to the Seller from the Hammer Price after deducting the commission pro rata, taxes and all Expenses and other amounts owed to the Company by the Seller.
(11) “Purchase Price” means the total amount payable by the Buyer for his/her/its bid, including Hammer Price, commission and other Expenses payable by the Buyer.
(12) “Expenses” means expenses charged by the Company, including but not limited to expenses with respect to insurance, preparation of catalogues and other publication materials, packaging, transportation, storage, custody, remittance and any other expenses pursuant to relevant Laws and provisions hereof.
(13) “Reserve Price” means the lowest selling price of the Lot offered by the Seller and confirmed with the Company in the auction consignment contract or confirmed by the Company with the Seller’ authorization.
(14) “Reference Price” means the estimated selling price of the Lot provided in the catalogue or other descriptive materials. The Reference Price is estimated prior to the Auction Date, which cannot be deemed as the fixed sale price and is not legally binding.
(15) “Storage Fee” means the fee payable by the Buyer or the Seller under the Conditions relating to storage of the Lot, and the current standard of the Storage Fee is equal to 0.3‰ of the Reserve Price (if no Reserve Price is applicable, the agreed insurance amount shall apply) per day.
(16) “Online Platform” means the online platform used by the Company to hold online auctions and provide Live Online Bidding services, including but not limited to the Company’s official website “www.woeiswo.com”, mobile app and other platforms. The auctioneer can host auctions live on the Online Platform or host auctions through the Online Platform’s preset auction programs, texts, speeches, or animations.
(17) “Online Account” means an independent online account of a Bidder created based on the username and password set by the Bidder after the Bidder has registered with the Company’s Online Platform.
(18) “Laws” means laws, administrative regulations, state department rules and normative documents promulgated and amended subsequently by competent authorities in the People’s Republic of China.
(19) “PRC” means People’s Republic of China.
Article 3 Scope of Application
The Company is legally qualified to conduct auction business pursuant to the PRC Laws. The Company can organize and conduct auctions within the scope permitted by the PRC Laws and policies. The Seller, the Bidders, the Buyer and any other concerned parties participating in the Company’s auction in relation to the cultural relics, artworks and other collections shall be deemed to accept in full and bound by the Conditions.
The Company has the right to provide Live Online Bidding services for particular auctions or Lots, and the Seller accepts and acknowledges the provisions of the Conditions of Business for Live Online Bidding. Any Bidder participating in offline auctions hosted by the Company through the Company’s Online Platform shall act in accordance with the currently effective Conditions of Business for Live Online Bidding as well.
Article 4 Special Notice
The Seller, the Bidders and the Buyer involved in the Company’s auction should read the Conditions carefully, act in accordance with the Conditions and be responsible for its/his/her involvement in the auction. If any party does not read the Conditions carefully, such party shall bear any loss or liability incurred therefrom. The Company has the right to decide at its discretion to postpone or cancel the auction due to weather or other reasons, without making any compensation to the Bidders.
During an auction held by the Company, when the auctioneer confirms the highest bid by dropping his/her hammer or in any other public manner, the Bidder with the highest bid shall be the Buyer of the Lot. However, if a state-owned cultural heritage collection entity appointed by the authorities in charge of cultural heritage administration successfully exercise its state pre-emptive right of purchase within the time period provided in the relevant Laws and rules of the Company, then under such circumstances, the state-owned cultural heritage collection entity shall be the Buyer.
The Company, the Seller and the Buyer shall acknowledge the sale of the Lot and its closing, enjoy the rights and assume the obligations provided by Laws and the Conditions. Any party that fails to perform the obligations shall bear its/his/her corresponding legal liabilities.
Article 5 Defect Guarantee
The Company hereby declares that it does not guarantee the genuineness, quality and value of the Lot, and the Company shall not bear any warranty liability for a defect of the Lot. All Lots shall be sold on an “as is” basis.
The Bidders shall personally inspect and investigate the Lot and shall be liable for their bids. If a Bidder makes any bid during the Company’s auction, the Bidder shall be deemed to have conducted an overall inspection and valuation of the genuineness, quality and value of the Lot, be satisfied with the genuineness, quality and value of the Lot, and fully understand and accept the defect (if any) of the Lot by the Bidder. The participation in the bidding by a Bidder demonstrates the Bidder’s willingness to bear any possible risk and waive his/her/its right to make any objection to the genuineness, quality and value of the Lot.
Chapter II Conditions Concerning the Seller
Article 6 Consignment Procedures
When arranging for consignment, if the Seller is a natural person, he/she shall hold a valid identity card or passport or other certificates approved by the competent government of the PRC, and shall enter into an auction consignment contract with the Company. If the Seller is a legal entity or other organization, it shall possess a valid certificate of registration, identity certificate of legal representative or other legal authorization document, and shall enter into an auction consignment contract with the Company.
Pertinent contents of the Conditions constitute an important agreement between the Company and the Seller and form an essential part of the auction consignment contract therebetween. Issues not covered by the auction consignment contract shall be solved in accordance with the Conditions.
When the Seller consigns the Lot to the Company for auction, the Seller shall be deemed to simultaneously authorize the Company to exhibit and display the Lot and to make pictures, illustrations, catalogues, or audio-visual products or publication materials in other forms of the Lot.
Article 7 The Seller’s Agent
When the Seller’s agent consigns the Lot to the Company for auction, he/she/it shall present to the Company a relevant authorization letter and legal identity certificate of the Seller and his/her/its agent, and shall enter into an auction consignment contract with the Company. If the Seller and his/her/its agent are natural persons, they shall each hold a valid identity card or passport or other certificates approved by the competent government of the PRC. A valid certificate of registration, identity certificate of legal representative or other legal authorization document is required from each in case they are legal persons or other organizations.
The Company reserves the right to examine the above consignment arrangement in any manner the Company considers reasonable. The examination or other actions or omissions by the Company shall not lessen, exempt or impact liabilities or obligations borne by the Seller.
Article 8 The Seller’s Warranties
The Seller hereby makes irrevocable warranties to the Company and the Buyer with respect to the consigned Lot as follows:
(1) The Seller has complete ownership or legal right to dispose of the Lot. The auction, exhibition, duplication, network communication, promotion, etc. of the Lot will neither prejudice any legal interest (including but not limited to ownership, copyright, privacy right, reputation right, right of succession, etc.) of any third party nor violate any Laws;
(2) The Seller has, to the best of his/her/its knowledge, made full and complete disclosure and description to the Company with respect to the origin and defect of the Lot without any concealment and fabrication;
(3) If the Seller breaches the above warranties, which leads to claims or proceedings brought by the actual owner of the Lot or any third party who claims to have right to the Lot and results in losses and damages by the Company and/or the Buyer, the Seller shall assume all relevant legal liabilities, including without limitation indemnifying the Company and/or the Buyer for all losses and damages incurred in connection therewith and bearing all expenses and costs incurred in connection therewith.
(4) After the occurrence of an insured event of the Lot, where there is evidence to show that the Lot is inconsistent with the Seller’s description, the amount of compensations made by the Company and the insurer shall not exceed the real market price of the Lot before its damage as verified by the insurer, and the Seller shall indemnify the Company against all losses incurred thereto due to inconsistency with the description.
Article 9 Reserve Price
All Lots are offered subject to a Reserve Price, unless otherwise marked or explained by the Company. The Reserve Price shall be determined by the Seller and the Company after negotiation, or determined by the Company as entrusted by the Seller. After determining the amount of the Reserve Price by the Seller and the Company, any modification of the Reserve Price by either the Seller or the Company shall be subject to prior written consent by the other party. In no circumstances shall the Company assume any liability for failure to sell due to bidding lower than the Reserve Price at the Company’s auction.
Article 10 The Company’s Discretion before Auction
The Company has absolute discretion in determination of the following matters:
(1) Updating specific information of the Lot (including indication of “kuan (款)” in the case of noticeable differences in the Lot from the recognized characteristics and levels of an artist, indication of “chuan(傳)” in the case of unsigned Lot but considered by descendants to be created by a certain artist, etc.) under the auction consignment contract, making explanations and/or appraisal of any Lot through the catalogue and/or news outlets and/or other media;
(2) Consultation with any expert;
(3) Arrangement for the illustration of the Lot in the catalogue, with respect to its order, location, page size, etc., and fee rate; manner of exhibition/display of the Lot; other arrangements during the exhibition/display of the Lot and expenses incurred therefrom;
(4) Unless otherwise agreed by the Company and the Seller, the Company shall at its own discretion decide on whether the Lot is appropriate to be auctioned by the Company (i.e. whether to be auctioned finally), as well as the place of auction, the session of auction, the date of auction, the conditions of auction, the manner of auction and the method of bidding, etc.;
(5) The Company will announce the conditions and procedures for the Bidders to acquire the bidding paddles before the Auction Date, including but not limited to setting qualifications of the Bidders for acquiring the bidding paddles, in accordance with different conditions and manners of auction.
Article 11 Unauctionable Lot
After the Seller has signed the auction 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 must collect the Lot within thirty days upon the receipt of the Company’s Notice of Collection and at his/her/its own cost to the packaging and transportation. The auction consignment contract between the Seller and the Company shall terminate as of the date the Seller collects the Lot. If during the abovementioned period the Seller fails to collect the Lot, the auction consignment contract shall automatically terminate upon the expiration the aforementioned thirty-day time limit. If within seven days after the termination of the auction consignment contract, the Seller does not collect the Lot, the Seller shall pay the Company Storage Fee according to the standard set forth in Article 2 Clause (15) of the Conditions from the eighth day after the termination of the auction consignment contract. If the Seller does not collect the Lot within ninety days after the termination of the auction consignment contract, the Company has right to act in accordance with Article 30 of the Conditions.
Article 12 Suspension of Auction
The Company may suspend any auction at any time before the real auction date or during the auction under any one of the following situations:
(1) The Company has the objection to the ownership and authenticity of the Lot;
(2) Any third party has objection to the ownership and authenticity of the Lot and is able to provide relevant evidence accepted by the Company, while expressing in writing his/her/its willingness to take all legal responsibilities for all legal repercussions and losses incurred due to suspension of auction;
(3) The Company has the objection to the explanation of the Seller or the accuracy regarding the Seller’s warranty provided in Article 8 of the Conditions;
(4) The Company has any evidence to prove the Seller has already violated or will violate any term of the Conditions;
(5) The Lot is involved in any judicial procedures including but not limiting investigation, litigation, preservation, seals up, injunction, detain, attachment and enforcement etc. conducted by any judicial organs with compulsory power.
(6) Any other reasonable cause.
In case of any suspension incurred by aforesaid situations, the Company is entitled to liquidated damages paid by the Seller in the amount equal to 30% of the Reserve Price of the Lot (if no Reserve Price is applicable, the agreed insurance amount shall apply）as compensation for the Company’s actual loss and loss of expected profits due to the said suspension.
Article 13 Withdrawal of the Lot by the Seller
The Seller may withdraw the Lot at any time prior to the Auction Date by issuing a written notice stating the reasons to the Company. The Seller shall pay the Company liquidated damage in the amount equal to 30% of the Reserve Price of the Lot (if no Reserve Price is applicable, the agreed insurance amount shall apply.). If such liquidated damage cannot remedy the Company’s Loss, the Seller should compensate the Company for all losses incurred due to the withdrawal of the Lot.
In case of withdrawal of the Lot, the Seller shall take the Lot back within thirty days after receiving the notice on collecting the Lot sent by the Company. If the Seller does not collect the Lot within the aforementioned thirty-day time limit, the Seller shall pay the Company Storage Fee according to the standard set forth in Article 2 Clause (15) of the Conditions from next day after the expiration date of the aforementioned thirty-day time limit. If the Seller does not collect the Lot within ninety days after the foregoing time limit, the Company has right to act in accordance with Article 30 of the Conditions.
Any dispute or claim arising out of the Seller’s withdrawal of the Lot shall be borne by the Seller, and has nothing to do with the Company.
Article 14 Automatic Insurance
Unless otherwise instructed by the Seller in writing, all Lots will be automatically covered under the insurance policies purchased by the Company as soon as the Seller signs the auction consignment contract with the Company and delivers the Lot to the Company. The insurance amount shall be based on the Reserve Price agreed by the Seller and the Company in the auction consignment contract (if no Reserve Price is applicable, the insurance amount shall be the one agreed by both parties; if the Reserve Price is adjusted, the insurance amount shall be the adjusted Reserve Price of the Lot).
The insurance amount is only applicable to insurance and claim for compensation after the occurrence of insurance accident, is not Company’s warranty or guarantee for the value of the Lot, and does not mean that the Lot can be sold for an amount equal to the insurance amount by auction held by the Company.
Article 15 Insurance Premium
Unless otherwise agreed by the Seller and the Company, the Seller shall pay an insurance premium according to the following provisions:
If the Lot is not sold, the insurance premium payable by the Seller shall be 1% of the Reserve Price (if no Reserve Price is applicable, the agreed insurance amount shall apply; if the Reserve Price is adjusted, the adjusted Reserve Price shall apply).
If the Lot is sold, the insurance premium payable by the Seller shall be 1% of the Hammer Price.
Article 16 Insurance Period
Insurance period shall commence at the time when the Seller signs the auction consignment contract with the Company and delivers the Lot to the Company.
If the Lot is sold, the insurance period shall terminate at the earlier of the expiry of thirty days after Sale Date and the date when the Buyer collects the Lot. If the Lot is unsold or not auctioned, the insurance period shall terminate at the earlier of the date when the Seller collects the Lot and the expiry of thirty days after the Seller received the Company’s notice on collecting the Lot.
Article 17 Insurance by the Seller
In the event that the Seller notifies the Company not to apply insurance for the Lot in writing, the Seller shall undertake all the risks and the following liabilities (unless otherwise adjudicated by court or arbitration commission):
(1) To indemnify the Company from and against any claims or actions brought by any other party with respect to the losses or damages of the Lot;
(2) To hold the Company and/or any other parties harmless from and against any losses and expenses in relation to the damages and/or losses of the Lot caused by any reason; and
(3) To notify the terms of indemnity hereunder to any insurer of the Lot.
Article 18 Exclusion of Insurance Coverage
The Company will not be liable for and the insurance does not cover the following matters:
(1) Losses of the Lot caused by any repair, restoration, retouching or similar work process; or by natural wear, deterioration, inherent or potential defects, inherent flaws, inherent material changes (natural deformation), self-combustion, self-warming, oxidation, rust, leakage, rat-bite, woodworm, insect bites, insect pests, mildew, fungi, rot, perspiration, water stains, changes in atmospheric (climate or temperature) conditions, changes in normal water level, or other reasons of gradual changes; or by air pollution, land pollution, water pollution and other non-radioactive contamination, earthquake, tsunami; by theft during fire or explosion; or by war, actions similar to war, hostile actions, armed conflicts, terrorism, rebellion, coup, strike, riots, civil riots, administrative action or judicial action, or nuclear fission, nuclear fusion, nuclear weapon, nuclear material, nuclear radiation, or radioactive pollution;
(2) Damages or losses of book frame, glass, drawer, bottom mat, stand, mounting, insert pages, roller or other similar accessories caused by any reason;
(3) Other indirect losses caused by any circumstance.
Article 19 Insurance Indemnity
When any incidents covered by the insurance the Company purchased for the Lot occurs, such incidents shall be handled in accordance with the PRC Laws in connection with insurance. The Company shall pay compensation to the Seller in the amount up to insurance indemnities deducting all expenses incurred by the Company (except for commissions), after the Company obtains such indemnities from the insurer.
Article 20 Prohibition of the Seller’s Participation
The Seller shall neither bid for the Lot consigned to the Company by himself/herself/itself, nor authorize any other person to bid on his/her/its behalf. The Seller shall be liable for and indemnify the Company for any losses and damages caused by violation of this provision.
Article 21 Commission and Expenses
Unless otherwise agreed upon by the Seller and the Company, the Seller hereby authorizes the Company to deduct 10% of the Hammer Price as the commission and any other Expenses.
The Seller agrees that the Company is entitled to charge the Buyer a commission equal to 15% of the Hammer Price, in addition to various other Expenses, in accordance with provisions in Article 46 of the Conditions.
Article 22 Service Fee for Unsold Lot
In case the Lot is not sold because the bidding price is lower than the Reserve Price, the Seller hereby authorizes the Company to charge the Seller a service fee for unsuccessful auctioning in the amount equal to 3% of the Reserve Price, in addition to various other Expenses.
Article 23 Payment of the Proceeds of Sale
In the case that the Buyer makes full payment to the Company in accordance with provisions in Article 47 hereof, the Company shall pay the Proceeds of Sale to the Seller in RMB after thirty-five days from the ending day of the auction. The Seller shall bear remittance expenses charged by the bank.
Article 24 Deferred Payment
In the case that the Company does not receive the full payment from the Buyer upon the expiry of the payment period under Article 47 hereof, the Company will pay the Sale Proceeds to the Seller within seven working days (meanwhile such payment should be made after thirty-five days from the ending day of the auction as well) after the receipt of full payment from the Buyer.
Article 25 Cancellation of the Transaction
In the event that the Buyer does not make full payment to the Company within ninety days as of the Sale Date, the Seller has the right, from the ninety-first day, to cancel the transaction after giving the Company a notice in writing and receiving prior approval from the Company. The Seller shall give the Company a full refund of the money already received as paid by the Buyer, if he/she applies to cancel the transaction. Where the Seller refuses to refund or give a full refund for any reason such as indemnification for losses, the Company is entitled to deny the Seller’s application for cancellation. The Company shall send a cancellation notice to the Buyer within seven working days after the Company approves the Seller to cancel the transaction. In the event that the Buyer has made full payment and/or completed collection procedure before delivery of the Seller’s cancellation notice to the Company, such notice should be deemed void automatically, and the transaction shall be carried out in accordance with regulations stipulated in Article 24, under which the Seller should cooperate with the Company and under no circumstance raise objection.
In the event that the Seller cancels the transaction, the Seller must collect the Lot within thirty days as of receiving the Company’s notice on collecting the Lot. The Seller shall bear fees for the packaging and transportation. In the event the Lot has not been collected within the above thirty-day time limit, the Seller shall pay the Company Storage Fee according to the standard set forth in Article 2 Clause (15) of the Conditions from the expiration date of the aforementioned thirty-day time limit. If the Seller does not collect the Lot within ninety days after the foregoing thirty-day time limit, the Company has right to act in accordance with Article 30 of the Conditions.
Article 26 Claim on Behalf of the Seller
If the Buyer fails to pay in full in accordance with the Conditions, and the Seller requires the Company to claim the outstanding payment from the Buyer, the Company can take appropriate actions (including but not limited to resorting to legal proceedings) to assist the Seller in collecting such outstanding payment from the Buyer as the Company deems practical. However, the Seller shall pay in advance reasonable expenses (including but not limited to litigation costs, attorney fees, travel expenses, etc) arising therefrom to the Company. The Company can at its own discretion decide the specific amount of the reasonable expense. When the actual expense in relation to claiming outstanding payment is determined, the Company shall return the remaining amount of the advance payment to the Seller or request the Seller to pay for the expenses in excess of the advance payment.
The above provisions do not exclude the Seller’s right to demand in person or authorize any third party to claim outstanding payment from the Buyer and do not oblige the Company to claim the corresponding outstanding payment from the Buyer on behalf of the Seller under any circumstance. The Company shall not be liable to the Seller due to the Buyer’s failure to make full payment in time under any circumstance.
Article 27 Taxes
The Seller shall be obliged to pay taxes for the Proceeds of Sale obtained pursuant to the PRC Laws. In the case that the Seller has a duty to pay a tax to a government, while the Company is obligated to withhold and pay the tax to the competent authority in accordance with the relevant Laws of the PRC, then the Company shall withhold and pay taxes on behalf of the Seller pursuant to Laws, and the Seller shall assist in handling all the formalities. The Company should deliver the receipt of tax payment to the Seller after the payment of tax.
Article 28 The Company’s Discretion
The Company can independently determine the following matters as the case may be:
(1) To reduce or waive the Bidder’s deposit;
(2) To agree to special conditions of the payment of the Purchase Price;
(3) To remove, store and purchase insurance for sold Lot;
(4) To settle claims brought by the Buyer or the Seller in accordance with relevant terms and conditions herein;
(5) To settle with the Buyer or take other necessary measures to collect the outstanding payment from the Buyer.
(6) Other matters specified by this Conditions that the Company can independently determine.
Article 29 Unsold Lot
In the event that the Lot is not sold, the Seller shall take back the Lot within thirty days after receipt of the Company’s notice on collecting the Lot. The Seller shall bear expenses on packing and transportation, and pay the Company fees for failed auction and all Expenses. The auction consignment contract between the Seller and the Company will terminate on the date of collection of the Lot by the Seller. If during the aforementioned period the Seller fails to collect the Lot, the auction consignment contract will automatically terminate on the expiration date of the aforementioned thirty-day time limit, but the Conditions shall still be effective between the Company and the Seller. If within seven days after the termination of the auction consignment contract, the Seller still does not collect the Lot, the Seller shall pay the Company Storage Fee according to the standard set forth in Article 2 Clause (15) of the Conditions from the eighth day after the termination of the auction consignment contract. If the Seller does not collect the Lot within ninety days after the termination of the auction consignment contract, the Company has right to act in accordance with Article 30 of the Conditions.
Article 30 Deferred Retrieval of the Lot
If the Seller fails to retrieve the Lot within the time limit provided in the Conditions, the Seller shall be liable to all risk and/or loss that occurs after the expiration of the time limit. In the event that the Seller should take back the Lot in accordance with the Conditions as a result of unauctionable Lot, withdrawal by the Seller, unsold Lot, cancellation of transaction by the Seller and other circumstances, if the Seller fails to do so, the Company shall have right to auction in public or sell the Lot in ways and conditions as the Seller deems appropriate after the expiration of the time limit provided in the Conditions. The Seller may collect the remaining amount, which is arising from forgoing disposal by the Company after deducting all losses and expenses (storage Fee, insurance premium, transportation fee and notarization fee) incurred, without any interests.
If the Seller requires the Company to assist in returning the Lot, regardless of whether the Seller delays in collecting the Lot or not, the Seller shall be liable for all risks and bear all expenses. The Company is not responsible to purchase transportation insurance in general, unless the Seller specifically instructs the Company to do so and bears the insurance premium.
Chapter III Conditions Concerning the Bidders and the Buyer
Article 31 Catalogue of the Lot
At the auction, the Company will prepare a catalogue of paper or electronic version to introduce the status of the Lot with words and/or pictures for the convenience of Bidders and Sellers. The words, Reference Price, pictures in the catalogue and other images and public materials are only references for Bidders and are subject to revision before auction. The Company provides no guarantee for the authenticity, value, tone, quality or against any flaw or defect of the Lot.
Article 32 Uncertainty of Catalogue
In case that the tone, color, gradation and shape shown in catalogue and/or any other illustrations, images and publication materials differ from those of the Lot due to print, photograph and other technical reasons, the original shall take precedence.
Any statement and appraisal made in writing or verbally (including but not limited to the certificate, catalogue, status explanation\report, slide show, news and online media) of any Lot made by the Company and its employees or its agents are only for reference and should not be relied on as any guarantee or undertaking for the Lot. The Company and its employees or agents shall undertake no liability for any inaccuracy or omission in the statements and appraisals mentioned above.
The publications quoted in any explanation of the Lot by the Company and its employees or its agents are only reference to Bidders. The Company shall not provide the original or copy of such publications and other materials, and reserve the right to modify such quotation in explanation.
Article 33 Inspection by Bidders
The Company hereby declares that the Company cannot guarantee the genuineness, quality and value of the Lot, and the Company shall not bear any liability of guarantee against flaws. The Bidders and/or their agents shall inspect and investigate the actual status of the Lot on his/her/its own and take legal responsibility for his/her/its bidding for the Lot.
The Company strongly advises the Bidders to personally inspect the original Lot for which they intend to bid before the Auction Date by way of identification or other methods. And the Bidders shall judge the genuineness, quality and value of the Lot by themselves rather than making decisions by relying on the Company’s catalogue, status explanation\report and written or verbal expression in other forms of the Lot.
Article 34 Registration of Bidders
The Bidder shall register, check-in and receive a bidding paddle before the Auction Date, in accordance with the condition and procedure for the bidding paddle as announced by the Company, with a valid identity card, or passport or other certificates approved by the PRC and other materials required by the Company in the case of a natural person, or with a valid certificate of registration, ID of legal representative or other legal authorization certificates and other materials required by the Company in the case of a legal entity or other organization. The Bidder shall be responsible for the authenticity of the information and materials provided by them.
The Company has the right to require the Bidders to provide the proof of financial conditions, guarantee, proof of deposit and/or other guarantees as required for the Lot for which the Bidders intend to bid.
Article 35 Bidding Paddles
The Company will announce the conditions and procedures for the Bidders to acquire the bidding paddles before the Auction Date, including but not limited to setting qualifications of the Bidders for acquiring the bidding paddles, in accordance with different Lot or conditions and forms of auction.
The Company seriously cautions that the bidding paddle is the only evidence of the Bidder’s participation in on-site bidding. Each Bidder shall take good care of his or her bidding paddle and may not lend it to any third person. In case of losing such paddle, the Bidder shall report the lost paddle in writing under the procedure approved by the Company.
The bidding act of the person holding the bidding paddle is deemed to be the bidding act of the registered holder of the paddle, regardless of whether he/ she is entrusted by the Bidder or not. The registered holder of the bidding paddle shall be liable for the act of the person holding the bidding paddle, unless the registered holder of the bidding paddle reports the lost paddle in writing under the procedure approved by the Company and such bidding paddle has been declared void by the auctioneer during the on-site auction.
Article 36 Deposit
When participating in the Company’s auction, any Bidder shall pay a deposit before the Bidder receives bidding paddle. The amount of the deposit will be announced by the Company before the Auction Date. The Company has the right to waive or reduce the deposit. In case that the Bidder succeeds in buying the Lot, then such deposit that the Bidder has paid to the Company (including the deposit paid at offline auction and/or by Online Account) shall be converted into the payment for the Purchase Price of the Lot; in case that the Bidder fails to buy the Lot or there is remaining sum after the converting part of the deposit into the payment for the Purchase Price and that the Bidder is not participating in the bidding process for any Lot and also does not owe any money to the Company, or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates, the Company will refund the deposit or its balance to the Bidder within ten working days after the ending day of the auction. The time to receive the refund shall depend on the recipient bank.
The Company will not pay any interest, income or benefit when refunding the deposit.
The Company has the right to use the deposit paid by the Bidder at offline auction and/or by Online Account to pay off any money owing to the Company, or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates. In case that the Bidder purchases several Lots simultaneously, the Company has the right to decide the way of allocation following the conversion of deposit into the payment for the Purchase Price.
Article 37 The Company’s Option
The Company may at its own discretion forbid anyone from participating in auction, entering the auction premises, or taking a picture, making a sound recording or making a video recording during auction, and does not assume any responsibility, liability or losses that may arise therefrom.
Article 38 Abnormal Events
In case of any abnormal events affecting the normal process of the auction, the Company has the right to take necessary actions as the case may be, including but not limited to suspending the auction process, resuming/continuing the auction process, suspending a certain method of bidding, deciding to re-auction the Lots under dispute, organizing auction separately or canceling the auction. The Company does not assume any liability for losses that may arise due to the abnormal events or the above-mentioned actions. In the case that any dispute arises during the auction, the Company has right to mediate and settle.
Article 39 Bidding as Principal
Any person who bids shall be deemed as the Bidder himself/herself/itself, unless the Bidder presents the Company with a written certificate showing that it is the agent of a particular Bidder, which is subject to the Company’s approval in writing form before Auction Date.
Article 40 Absentee Bidding
The Bidder shall attend the auction personally. If the Bidder cannot attend the auction in person, the Bidder may authorize the Company in writing to bid on his/her/its behalf. The Company shall have the right to but no obligation to accept such authorization. The Bidder who intends to authorize the Company to bid on his/her/its behalf shall present the Company with a written authorization letter and hand in the deposit in accordance with the provisions in Article 36 hereof within specified period (not later than twenty-four hours before the Auction Date).
The Bidder should set out instant communication method(s) and tool(s) in the authorization letter. During the period of entrusted bidding, the bidding information (regardless of whether it is sent off by the Bidder itself or not) as transmitted via such instant communication tool(s) shall be deemed as the act of the Bidder who shall assume full legal responsibility. The Bidder shall make use of such instant communication tool in person; in case of losing it or being unable to control it, the Bidder shall inform the Company in writing in a way approved by the Company and change the instant communication method(s) as set out in the authorization letter. When the Bidder confirms the instant communication method(s) and tool(s) in writing, then it shall be deemed that the Bidder has recognized the safety of such instant communication method(s) and tool(s) and authenticity and objectivity of communication information, over which no dispute shall be raised afterwards.
If the Bidder who entrusts the Company to bid on his/her/its behalf intends to cancel entrustment shall inform the Company of cancellation in writing not later than twenty-four hours before the Auction Date.
In the event that the Bidder entrusts the Company to bid on his/her/its behalf, such bidding outcome and relevant legal responsibility shall be borne on the Bidder.
Article 41 No Liability for Absentee Bidding
Given that absentee biding is a free service provided by the Company for relaying the bid message on behalf of the Bidder, the Company and its employees shall not be liable for any failure in bidding or for any negligence or fault in the authorized bids or for being unable to undertake absentee bidding.
Article 42 Principle of Appointment by Priority
In the event that two or more Bidders entrust the Company to bid on their behalf for the same Lot with the same authorized price, and the Lot is ultimately sold by dropping the hammer at such price in the auction, the Bidder whose authorization letter was first delivered to the Company shall be the Buyer of the Lot.
Article 43 Auctioneer’s Discretion
The auctioneer has absolute discretion over the following matters:
(1) Refuse or accept any bid;
(2) In case of any unusual events or dispute, regardless of at or after the auction of a particular Lot, the auctioneer has the right to decide who is the Buyer with the highest price, whether or not to suspend the auction process, to resume/continue the auction process, to cancel the auction, to re-auction the Lots under dispute, or to recognize the validity of the original bid at the time of re-auction;
(3) Open and carry out the bidding at a level with bidding increments that he or she considers suitable and has the right to increase or decrease the level with bidding increments;
(4) For the Lots without Reserve, the auctioneer can at its own discretion decide the starting price, unless there is a bidding already;
(5) Take other actions he or she deems as appropriate at auction site.
Article 44 Display of Images and Currency Exchange
At some auctions, there may be image projections or other screens in operation for the convenience of Bidders, which is only for reference. However, there may be errors, lag or non-display in amounts, numbers or pictures of the Lot, or in foreign exchange rate on the screen. The Company shall not be liable for any losses and damages caused thereby.
Article 45 Successful Bid
When the highest bid of the Bidder is confirmed by dropping the auctioneer’s hammer or in other public manners, the Bidder with the highest bid shall succeed in the bid. Such confirmation means that the Bidder has no objection to the process of the auction and undertakes to be responsible for its bidding and the Bidder shall become the Buyer of the Lot. The Buyer shall sign the writing confirmation/auction minutes; Even if the buyer fails to sign up to the writing confirmation/auction minutes, it shall not prejudice the buyer’s liabilities herein. In case the buyer fails to pay any payable, the Company has the right to require the buyer to compensate it for all losses therefrom and to hold the Buyer legally responsible according to Article 54 hereof.
After successful bidding, in case a third party person (including but not limited the person holding the bidding paddle) signs the written confirmation /auction minutes on behalf of the Buyer, it shall be deemed that the Buyer appoints such person to represent the Buyer to sign the written confirmation /auction minutes, whether such person has submitted to the Company a power of attorney or authorization letter confirmed by the Buyer or whether the name signed on the written confirmation /auction minutes is the name of the Buyer. The legal consequence of all actions of such person shall be borne by the Buyer unless the Buyer raises an objection to the signing at the auction site.
Article 46 Commission and Expenses
After the Bidder succeeds in bidding, the Bidder will be deemed as the Buyer of the Lot. The Buyer shall pay the Company a commission in an amount equal to 15% of Hammer Price, in addition to Expenses, and acknowledge that the Company is entitled to charge the commission and other costs payable by the Seller in accordance with Article 21 hereof.
Article 47 Payment Requirements
After the Lot is successfully sold in auction, the Buyer shall make full payments to the Company within thirty days after the Sale Date and collect the Lot. The Buyer shall also pay packaging charges, transportation fee and transportation insurance premium, if there is any. The Company reserves the right to refuse the payment from any third party other than the Buyer. If the Buyer purchases several Lots, but neither fully pays the Purchase Prices nor designates the specific Purchase Price for each of the Lots in writing when making the payments, then the Company is entitled to decide at its own discretion how to allocate the Purchase Prices.
Article 48 Payment Currency
All payments shall be made in the currency designated by the Company. In the event that the Buyer makes payments in currency other than the designated one, the currency shall be converted at the rate exchange agreed between the Buyer and the Company or at the exchange rate announced by People’s Bank of China one working day prior to the payment. All bank handling fees, commission and other relevant charges incurred by the Company for converting the foreign currency paid by the Buyer to RMB shall be borne by the Buyer.
Article 49 Transfer of Title
The Buyer will acquire ownership of the Lot after having paid the full Purchase Price.
Article 50 Transfer of Risks
After a successful bid, the risk of the Lot shall be borne by the Buyer itself after the occurrence of one of the following events (whichever is earlier):
(1) The Buyer collects the Lot; or
(2) The Buyer pays to the Company the Purchase Price for the Lot in full; or
(3) Expiry of thirty days after the Sale Date.
Article 51 Collection of the Lot
The Buyer shall collect the purchased Lot at the Company’s Domicile or other places appointed by the Company within thirty days after the Sale Date. If the Buyer fails to collect the Lot within the thirty-day time limit, the Buyer shall be solely responsible for all risks and losses of the Lot and bear all expenses for storage, transportation fee and insurance in connection with the Lot after the expiration of the thirty-day period. Even if the Lot is still kept by the Company or any other agents on behalf of the Buyer, the Company and its employees or its agents shall not be liable for any losses and damages of the Lot caused by any reason. If the Buyer is in the process of bidding for any Lot or owes payments to the Company or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates, the Buyer shall not collect any Lot.
Article 52 Packaging and Transportation
The Company may arrange packing and handling of the purchased Lot for the Buyer at its request. Such arrangement is an assistance provided by the Company and the Company can decide whether or not to provide such assistance. The Buyer shall be liable for any loss arising from such arrangement. Under no circumstances shall the Company take any liability for any damages to glass, frames, drawer, bottom mat, trestle, mounting, insert pages, roller or other similar accessories arising out of any reason. In addition, the Company shall take no liability for any fault, omissions, damages or losses caused by the packaging company or carriers recommended by the Company.
Article 53 Export and Import of the Lot
Any Lot sold at auction may be affected by laws on exports of the country in which it is sold and the import and export restrictions of other countries and regions. The Buyer alone is responsible for getting advice about and meeting the requirements of Laws which apply to exporting or importing any Lot prior the bidding. The Buyer that carries and transports cultural relics out of the PRC shall go through the formalities of exit examination and verification of cultural relics separately according to Laws. For the Lot under the supervision of Customs of the PRC or within the Bonded Zones, when the Lot is successfully sold in the auction, the Buyer shall handle import procedures on its own and bear the relevant taxes and fees by itself. The Buyer cannot cancel the deal or delay payment because of failure to get permits or other relevant paperwork.
Article 54 Remedies for Non-Payment
The Company has no obligation to investigate the Bidder’s and the Buyer’s ability for payment. In the case that the Buyer fails to duly pay in full within the period provided in the Conditions, the Company shall be entitled to adopt one or more of the following remedies:
(1) If following a successful bid the Buyer fails to make payment within the stipulated period under the Conditions, the deposit shall not be refunded and the Buyer shall also undertake all corresponding liabilities according to the Conditions. In the event that the Buyer fails to pay the full Purchase Price of any Lot within the stipulated period under the Conditions after successful bidding on several Lots, the Buyer shall be deemed to have constituted the material breach of contract and all of the deposit shall not be refunded and the Buyer shall undertake relevant responsibilities in accordance with the Conditions. The Company can choose to first compensate for the commission, Expenses and losses incurred by the Company with the above non-refundable deposit and retain the remaining sum for compensating the Seller’s suffered losses, or choose to first compensate for the losses suffered by the Seller with the deposit; in case there are several Sellers who have suffered losses, the Company has the discretion to decide how to allocate the deposit;
(2) If within thirty days after a successful bid the Buyer fails to pay the Company the Purchase Price, the Company shall have the right (but not the obligation) to entrusting third party to collect all or part of the default payment from the Buyer;
(3) If the Buyer fails to pay the Purchase Price in full within thirty days from the Sale Date, the Company has the right to charge the Buyer an interest at a rate of 0.3‰ per day on the due and unpaid amount from thirty-first day after Sale Date until the day on which the Buyer has fully paid the amount, unless otherwise agreed by the Buyer and the Company. Unless otherwise agreed by the Seller and the Company, the Company has the right to keep such interest;
(4) The Company can initiate legal 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, commission, Expenses and losses, damages, reasonable expenses arising out of litigation (including but not limited to legal costs, lawyer’s fees and travel expenses) and other relevant expenses;
(5) The Lot or other Lots purchased by the Buyer from the Company, and other properties or property rights of the Buyer which may be in the Company’s possession for any reason, will be used as a pledge. The Buyer is responsible for all expenses or risks that occur during the period of the pledge. In case the Buyer fails to perform all relevant obligations herein or pay all damages and compensation within the period as specified by the Company, the Company shall have the right to dispose of such property under pledge in accordance with relevant Laws of PRC. In the case the proceeds cannot cover the amount outstanding, the Company is entitled to claim the balance;
(6) In the event that the Buyer fails to make full payment to the Company within ninety days from the Sale Date, the Company can at its own discretion to cancel or approve the Seller to cancel the sale of the Lot and/or other Lots sold to the same Buyer at this auction or any other auctions as applicable, and reserve the right to claim any losses caused by such cancellation as of the ninety-first day from the Sale Date;
(7) Carry out a re-sale of the Lot by public auction or other ways according to the Conditions subject to the consent of the Seller. The original Buyer shall be liable to the Seller for the remuneration/commission and Expenses payable by the Buyer and the Seller occurred at the first auction as well as Expenses for re-sale by other ways. In addition, the original Buyer shall also be liable for the difference, if the Purchase Price actually received by the Seller from the re-sale or other ways of such Lot is lower than the original Purchase Price that would have been receivable therein had the Buyer made the full payments;
(8) To offset any money that the Buyer owes the Company against any sums that the Company or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates owe the Buyer in any other transactions; The Company can decide to use any money paid by the Buyer to repay any sums that the Buyer owes the Company, or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates, no matter whether the Buyer has given any instructions to repay such sums.
Article 55 Remedies for Delay in Collecting the Lot
In case the Buyer fails to collect the purchased Lot within the period provided in Article 51 hereof, the Company shall be entitled to adopt one or more of the following remedies:
(1) Arrange storage of the Lot at the Company or any other places and all cost (including but not limited to the Storage Fee according to the standard set forth in Article 2 Clause (15) of the Conditions calculating from thirty-first day after the Sale Date) and/or all risks shall be borne by the Buyer. The Buyer shall not collect the Lot unless the full Purchase Price is paid. The Buyer is responsible for the packaging charges, transportation fee, transportation insurance premium and other Expenses;
(2) The Seller shall bear all risks and/or expenses that occurs after the expiration of the thirty-day period mentioned above. If the Seller fails to collect the Lot within ninety days after Sale Date, the Company has right to public auction or sell the Lot in ways and conditions that the Company deems appropriate. The Seller shall collect the remaining amount, which is proceeds obtained from forgoing disposal by the Company deducts all loss, expense (packaging charges, transportation fee, transportation insurance premium, Storage Fee and notarization fee) incurred, without any interests.
Chapter IV Miscellaneous
Article 56 State Pre-Emptive Right of Purchase
When the relevant department of the government exercises the state pre-emptive right of purchase, the right shall be exercised pursuant to Laws of the PRC and decisions of the government. Relevant parties shall acknowledge and provide necessary cooperation.
The relevant documents on the state pre-emptive right of purchase submitted by the authorities in charge of cultural heritage administration to the Company shall not constitute any guarantee for or expert opinion on the genuineness, quality and value of the Lot.
Article 57 Confidentiality and Collection of Materials
The Company shall be obligated to maintain the confidentiality for the Seller, the Bidders and the Buyer (except otherwise prescribed by Laws of the PRC and the Conditions or requested to be disclosed by public authorities), except for those subject to disclosure to relevant bodies according to the current Laws. Under the circumstance where the Seller or the Buyer breaches the contract, the Company has the right to disclose to the Seller or the Buyer identity information of the other party (including but not limited to name/title, domicile and identity information) by its own judgment, so as to enable the injured party to acquire damages via litigation or other legal ways; the Company has the right to disclose the identity information of the defaulting party to the public or report the identity information of the defaulting party to the judicial organs, industry associations and credit organizations.
The Company might undertake the audio and video recording of any auction process and keep the minutes thereof, and needs to collect personal information from the Bidders or their information from the third party (e.g. credit checks from banks). These information will be handle by the Company and treated as confidential; and relevant information can only be disclosed to the Company or its parent company, subsidiaries, branches, offices (liaison offices) and affiliates for the purposes as set out herein, so as to assist the Company in providing excellent services for the Bidders and conducting clients’ analysis or to offer the services in line with the requirements of the Bidders. The Company may also need to disclose to the third party service provider (e.g. transportation companies or storage companies) partial personal information of the Bidder, in the interests of the Bidders. Any Bidder’s participation in the auction of the Company means the Bidder agrees to the above.
Article 58 Right of Appraisal
The Company may appraise the Lot if necessary and as the case may be, at the Company’s own discretion. In case of any discrepancy with respect to the status of the Lot between the appraisal result and the auction consignment contract, the Company shall be entitled to modify or rescind the auction consignment contract.
Article 59 Copyright
The Seller irrevocably authorizes the Company to take photographs, make illustrations, catalogues or images and publication materials in other forms relating to the Lot which is consigned to the Company for auction and the Company shall have the copyright on and the right to lawfully use such photographs, illustrations, catalogues or other images and publication materials. For the purpose of auction, the Company shall also have the right to use the photos, pictures and text materials related to the Lot provided by the Seller to the Company. In the event that any claim with respect to the photos, pictures and text materials arises, the Seller shall properly solve the claim and ensure that the Company will not bear any liability arsing therefrom.
Article 60 Compensation for Invalidation of Auction
In the event that the auction is invalid as the result of related person’s reason, such related person shall be responsible for compensation to cover all losses of the Company. The standard of compensation shall be based on the Company’s acquirable interest in case of valid auction and all expenses paid for claiming such losses.
Article 61 Notice
Both the Bidders and the Seller shall notify the Company of their valid and regular addresses and means of communication in the bid registration documents, auction consignment contract or other forms recognized by the Company. The Bidders or the Buyer shall bear the adverse consequences if failing to notify the Company in writing of the change of the addresses and means of communication. In case of changes to the addresses and means of communication, the Bidders or the Seller shall inform the Company in a timely manner. All notices herein and any notice relevant to auction business of the Company shall be oral notices by telephone or in writing which shall be delivered by post, fax, email, instant messages and Online Platform push, etc. In case of oral notices by telephone, where the Company dials the phone number which is filled in the Bidder’s signed document or the registration information of the Online Account, the oral notice shall be deemed received by the Bidders or the Buyer in person, whether the actual recipient is the Bidder or the Buyer. A notice sent by post shall be deemed to have been sent on the date the Company gives it to the post office, and shall be deeded as received by the addressee via normal mail service. A notice sent by other means of communication shall be deemed to be received by the addressee on the date when it is delivered.
Article 62 Severability
If any provision or part of the Conditions is confirmed to be invalid, illegal or unenforceable by a competent agency, the Conditions shall be ineffective to the extent of such illegality or unenforceability without invalidating or affecting the validity or enforceability of the remaining provisions of the Conditions.
Article 63 Settlement of Disputes
If any dispute arises from or in connection with participation in the auction pursuant to the Conditions, all concerned parties shall submit such dispute to a competent Chinese court of the place where the Company’s Domicile is located. Such dispute shall be governed by PRC Laws.
Article 64 Language
The Chinese version of the Conditions shall be the standard version. The English version is only for reference. In case of any discrepancy between the Chinese version and the English version, the Chinese version shall prevail.
Article 65 Copyright on the Conditions
The Conditions is made and amended in accordance with PRC Laws and the Company shall have the copyright on the Conditions accordingly. Without the Company’s prior written consent, no party shall use the Conditions for commercial purpose in any way or manner and shall not copy, transmit, or store any part herein into a searchable system.
Article 66 Singular and Plural
In the provisions of the Conditions, the singular includes the plural and vice versa where the context requires.
Article 67 Right of Alteration
The Company reserves the right to make any alteration to the Conditions at its sole discretion at any time the Company considers proper. The altered version is valid and becomes automatically effective on the date it is altered and is to be published in the way the Company considers proper. Any party involved must pay attention to any such alterations of the Conditions and the Company has the right not to inform parties thereof on a separate basis.
Article 68 Applicable Forms
Unless otherwise agreed by the Company, the auction consignment contract mentioned in Article 6 of the Conditions and the cancellation notice mentioned in Article 25 hereof should be made in the forms provided by the Company. The contents of such forms provided by the Company constitute an inseparable part of the Conditions.
Article 69 Date of Effectiveness
The Conditions takes effect on Dec 7, 2020.
Article 70 Right of Interpretation
The right of interpretation of the Conditions belongs to the Company.
京公網(wǎng)安備 11010102002546號 |
京網(wǎng)文[2017]2994-357號
