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TERMS AND CONDITIONS FOR THE FUNDRAISING ONLINE AUCTION
1. Definitions and interpretation
1.1 To make these Terms and Conditions for Online Fundraising Auction (“Terms”) easier to read, we have given the following words a specific meaning:
‘Auctioneer’ means Newlyn School of Art registered in England as a company limited by guarantee with company number 07621257 whose registered office is at The Old Board School, Chywoone Hill, Newlyn, Penzance, Cornwall, TR18 5AW;
‘Bidder’ means a person who places a bid for Goods at our online auction;
‘Bidding Platform’ means part of the Website;
‘Buyer’ means the person who makes the Current Highest Bid for the Goods accepted by the Auctioneer;
‘Consumer’ means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession;
‘Consumer Contracts Regulations’ means the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013;
‘Current Highest Bid’ means the highest bid made by a Bidder during the Listing Period;
‘Goods’ means the artworks that the Sellers consign to us for sale at our online auction;
‘Hammer Price’ means the level of the highest bid for the Goods (at or above any Reserve) when the Listing Period for the respective Lot ends;
‘Listing’ means a listing of Goods for sale on the Bidding Platform;
‘Listing Period’ means the period ending at 8pm on Tuesday, 30 June 2020 during which Bidders may place bids to purchase a Lot;
‘Lot’ means Goods or group of Goods offered for sale as one unit.
‘Price’ means the total of the Hammer Price and delivery costs;
‘Reserve’ means the minimum Price at which the Goods may be sold;
‘Sellers’ means the owner of the Goods and ‘Seller’ shall be construed accordingly;
‘Terms and Conditions for Fundraising Online Auction’/ ‘Terms’ means these terms and conditions;
‘VAT’ means any value added tax or equivalent sales tax which may be applicable to the Lot or Lots sold and to any other charges payable by the Buyer; and
‘Website’ means our Website available at www.newlynartschool.co.uk;
In these Terms the words ‘you’, ‘yours’, etc. refer to you as the Buyer. The words ‘we’, ‘us’, ‘our’ etc. refer to the Auctioneer. Any reference to a ‘Clause’ is to a clause of these Terms unless stated otherwise.
2. Information that we are required to give to Consumers
2.1 A description of the main characteristics of a Lot is contained in the Listing for that Lot revealed by clicking on ‘Full Details’. This description will also be contained in the Order Confirmation referred to in Clause 6.
2.2 Our name, address and contact details are set out on our Website.
2.3 The technical means for concluding the contract to buy Lots are set out in Clause 3.
2.4 The Price of the Goods and arrangements for payment as described in Clauses 4, 5, 6 and 9.
2.5 The arrangements for collection of the Goods as set out in the Order Confirmation and in Clauses 10 and 13.
2.6 Your right to cancel your purchase of a Lot and to receive a refund as set out in Clause 11 (provided you return the Lot to us at your own cost) and a copy of the Model Cancellation Form (attached).
2.7 We and the Sellers have a legal duty to supply Lots to you in accordance with these Terms.
2.8 If you have any complaints, please send them to us directly at the address set out on our Website.
3. Bidding procedures and the Buyer
3.1 You must click the ‘Full Details' grey box below an image and complete the bidding form on the Bidding Platform.
3.2 Your bid must be above the Reserve and the Current Highest Bid to have a chance of winning the lot.
3.3 Any Bidder may retract a bid prior to the end of the Bidding Period and if a bid was the Current Highest Bid prior to retraction then the next highest Bid will become the Current Highest Bid
3.4 The Bidder placing the highest bid that is above the Reserve for a Lot accepted by the Auctioneer will be the Buyer at the Hammer Price. Any dispute about a bid will be settled at our discretion. We will act reasonably when deciding how to settle the dispute.
3.5 Bidders will be deemed to act as principals, even if the Bidder is acting as an agent for a third party.
3.6 We may refuse to accept any bid if it is reasonable for us to do so.
3.7 We and/or the respective Seller(s) may withdraw any Lot(s) from the auction at any time prior to the end of the Listing.
3.8 We will not make deliveries to any address outside of the United Kingdom.
4. The Purchase Price
As Buyer, you will pay:
4.1 the Hammer Price and any VAT on the Hammer Price;
4.2 delivery costs and any VAT on the delivery costs.
4.3 The Reserve is the figure provided to us by the Seller and we/the Seller give no warranty as to any valuation or methodology or amount of the Reserve or market value of any Lots.
5.1 If a Seller is charging VAT then the Hammer Price is exclusive of VAT which will be added to the Hammer Price.
5.2 Delivery costs will be chargeable in addition to the Hammer Price at cost. If a Seller is charging VAT, VAT will be applicable to the delivery costs.
6. Order confirmation process
6.1 Once we have received your successful bid on a Lot, an automated confirmation of receipt will be displayed on the online auction page of the Bidding Platform. Please note that this does not mean that your bid has been accepted or that a contract has been made. We will confirm acceptance of your bid to you by sending you an Order Confirmation by e-mail which confirms that we have accepted your bid and we will contact you by email or by phone to take payment and arrange delivery following our receipt of the total amount due from you in cleared funds. The contract between the Seller and you (the “Contract”) will only be formed when we send you the Order Confirmation.
6.2 The Order Confirmation will include the following information:
6.2.1 the description of the Lot that you have successfully bid for;
6.2.2 the Hammer Price for the Lot that you have successfully bid for plus applicable VAT;
6.2.3 confirmation of the arrangements for your payment for and collection of the Lot;
6.2.4 details of your right to cancel the Contract and a model cancellation form;
6.2.5 details of our legal duty to supply the Lot in conformity with these Terms;
6.2.6 details of your right to return the Lot and receive a refund if the Lot is a Deliberate Forgery; and
6.2.7 our identity, address and contact details, and how you can complain.
6.3 We reserve the right to cancel the Contract on behalf of the Seller in (amongst others) the following situations, without being liable for any damage or costs:
6.3.1 your contact or billing information is not correct or not verifiable;
6.3.2 your bid is flagged up by our security systems as an unusual bid or a bid susceptible to fraud; or
6.3.3 your payment is not received within five days of our acceptance of your bid.
7. The contract between you and the Seller
7.1 As set out at Clause 6 above, we will confirm acceptance of a successful bid for a Lot to you sending you an Order Confirmation by email. The contract for the purchase of the Lot between you and the Seller will be formed when we send you the Order Confirmation, unless due diligence information required by the Auctioneer under the Money Laundering Regulations 2019 in accordance with their internal procedure remains outstanding, in which case the contract will be formed when that information is accepted by the Auctioneer as complete.
7.2 If you breach these Terms, you may be responsible for damages and/or losses suffered by a Seller or us. If we are contacted by a Seller who wishes to bring a claim against you, we may at our discretion provide the Seller with information or assistance in relation to that claim.
7.3 We act as an agent only and will not have any responsibility for default by the Seller.
8. Data check
When you submit a successful bid, we may run some checks on it before it is fulfilled. These checks may include verifying your address, creditworthiness, and checking for fraud. As to the latter, we run partly automated checks on all bids to filter out unusual or suspect transactions, or transactions which can be identified as susceptible to fraud. Suspected fraud on our online auctions will be investigated and if necessary prosecuted. By submitting your bid, you agree to this.
9.1 Immediately following your successful bid on a Lot you will:
9.1.1 give to us, if not already provided to our satisfaction, proof of identity in a form acceptable to us (and any other information that we require in order to comply with our anti-money laundering obligations); and
9.1.2 pay to us the total amount due in any way that we agree to accept which is ordinarily by debit or credit card over the phone and we do not accept cash.
10. Title and delivery of purchases
10.1 Once you have paid us in full the total amount due for any Lot and the delivery charges, ownership of that Lot will transfer from the Seller to you. We will not deliver a Lot until you have paid for it.
10.2 We, as agents for the Seller, will arrange delivery of the Lot to your requested delivery location. We will contact you to arrange delivery but you will need to be available on the designated delivery day which will be notified to us by the Seller’s delivery agents to take delivery of the Lot. Unfortunately, due to the specialised nature of the transport of the Goods we cannot be more precise in terms of delivery details.
10.3 If you do not accept the Lot on the delivery date then you will be responsible for further delivery, storage and insurance costs in relation to that Lot.
10.4 Risk of loss or damage to the Lot will pass to you when you (or your agents) take physical possession of the Lot.
11. Right to cancel
11.1 If you are contracting as a Consumer, you will have a statutory right to cancel your purchase of that Lot if you change your mind for any reason. The provisions below set out your legal right to cancel. Further advice about your legal right to cancel your purchase is available from your local Citizens Advice or Trading Standards office.
11.2 You may cancel your purchase at any time from the date of the Order Confirmation up to the end of the fourteenth day after the day of delivery of the Lot to you (or the person specified by you for delivery).
11.3 To cancel your purchase, you must inform us of your intention to cancel it by sending your Order Confirmation and the model cancellation form attached to these Terms. If you use this method we will email you to confirm that we have received your cancellation. You can contact us at 01736 365557 or send us an email to email firstname.lastname@example.org. If you send us your cancellation notice by email or by post, then your cancellation is effective from the date you send us the email or post the letter to us.
11.4 If you exercise your right to cancel your purchase, we, subject to the provisions of clause 12, will refund to you, on behalf of the Seller, the amount that you have paid including delivery costs. When exercising the cancellation right, you must return the Lot to us immediately at your own cost (as set out below).
11.5 You are entitled to a reasonable opportunity to inspect the Lots (which will include removing them from their packaging and inspecting them). At all times, you must take reasonable care of the Lots and must not let them out of your possession. If you are in breach of your obligations to take reasonable care of the Lots in this Clause 11.5, we will have a claim against you and may deduct from the refund costs incurred by us as a result of the breach.
11.6 Details of this statutory right, and an explanation of how to exercise it, are also provided in the Order Confirmation. This provision does not affect your statutory rights.
11.7 The cancellation right described in this Clause is in addition to any other right that you might have to reject a Lot.
12. Exercising the right to cancel
12.1 Where you have validly returned a Lot to us under your right of cancellation described in Clause 11, we will refund the full amount paid by you for the Lot.
12.2 Please note that we are permitted by law to reduce your refund to reflect any reduction in the value of the Lot, if this has been caused by your handling of the Lot in a way contrary to the conditions specified in these terms or which would not be permitted during a pre-sale exhibition held prior to an auction. If we refund you the price paid before we are able to inspect the Lot and later discover you have handled the Lot in an unacceptable way, you must pay us an appropriate amount.
12.3 You will be responsible for returning the Lot to us at your own cost. We cannot be precise in terms of the amount that it will cost you to return the Lot to us which will vary depending on the size and weight of your Lot but you should use our costs as a guideline.
12.4 We will process any refund due to you within the deadlines below:
12.4.1 if you have collected the Lot but have not returned it to us: fourteen days after the day on which we receive the Lot back from you or, if earlier, the day on which you provide us with evidence that you have sent the Lot back to us; or
12.4.2 if you have not collected the Lot or you have already returned the Lot to us: fourteen days after you inform us of your decision to cancel the Contract.
12.5 We will refund you using the same means of payment that you used for the transaction.
12.6 Legal ownership of a Lot will immediately revert to the Seller if we refund any such payment to you.
12.7 For further information on how to return Lots to us, please get in touch with us using the contact details provided on our Website.
13. Remedies for non-payment or failure to collect purchases
13.1 Please do not bid on a Lot if you do not intend to buy it. If your bid is successful, these Terms will apply to you. This means that you will have to carry out your obligations set out in these Terms. Subject to any cancellation of a purchase under Clauses 11 and 12, if you do not comply with these Terms we may (acting on behalf of the Seller and ourselves) pursue one or more of the following measures:
13.1.1 take action against you for damages for breach of contract;
13.1.2 reverse the sale of the Lot to you and/or any other Lots sold by us to you;
13.1.3 resell the Lot by auction or private treaty (in which case you will have to pay any difference between the Price you should have paid for the Lot and the Price we sell it for as well as the charges outlined in Clause 10.5). Please note that if we sell the Lot for a higher amount than your winning bid, the extra money will belong to the Seller;
13.1.4 keep that Lot or any other Lot sold to you until you pay the total amount due;
13.1.5 remove, store and insure the Lot at your expense;
13.1.6 if you do not make any payment within 5 business days we may charge interest to you on the overdue amount at the rate of 8% a year above the base lending rate of Lloyds Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount;
13.2 We will act reasonably when exercising our rights under Clause 13.1. We will contact you before exercising these rights and try to work with you to correct any non-compliance by you with these Terms.
14. Descriptions and condition
14.1 Our descriptions of the Lot will be based on information provided to us by the Seller of the Lot (for which we are not liable).
14.2 Please note that the images of the Lots on our Website are for illustrative purposes only and although we have made every effort to display the size and colours accurately we cannot guarantee that a device’s display of the colours and size accurately reflects the colours and size of the Lots.
14.3 Please note that Lots are sold ‘as is’. Neither we nor the Seller accept any liability for any condition issues affecting a Lot if such issues are included in the description of the Lot in the Listing or are revealed by photographs of the Lot appearing on the Listing.
15. Warranties, Our disclaimers and liability to you
15.1 The Seller warrants to us and to you that: (i) the Seller is the true owner of the Lot for sale; and (ii) the Seller is able to transfer good title to the Lot to you free from any third party rights or claims.
15.2 The Website and the Bidding Platform are provided by us or our service providers without any warranties or guarantees. All users of our Website and/or the Bidding Platform bear the risks associated with the use of the internet.
15.3 Both our Website and the Bidding Platform provides content from users, internet sites or resources. While we try to ensure that material included on our Website and/or the Bidding Platform is correct, reputable and of high quality, we cannot accept responsibility if this is not the case. Except as expressly set out herein, we will not be responsible for any errors or omissions or for the results obtained from the use of such information or for any technical problems users may experience with the Website and/or the Bidding Platform. If we are informed of any inaccuracies in the material on our Website or the Bidding Platform we will attempt to correct the inaccuracies or ask our service providers to do so as soon as we reasonably can.
15.4 You acknowledge that the Website and the Bidding Platform are provided as is for public use, subject to registration. Registration is free of charge and as such we have no responsibility to users of our Website and/or the Bidding Platform for any downtime or errors on our Website or the Bidding Platform. If, because of errors on our Website and/or the Bidding Platform an auction cannot be completed, our only responsibility to you is to enable Sellers to re-list Goods once our Website and/or the Bidding Platform is back up. In particular, we will not be liable for any loss of opportunity or disappointment suffered as a result of participating in our online auction. We will not be liable for any loss of opportunity or disappointment suffered as a result of participating in our online auction.
15.5 In addition, neither we nor the Seller shall be responsible to you and you shall not be responsible to the Seller or us for any loss or damage any of us suffer that is not a foreseeable result of any of us not complying with the Terms. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen.
15.6 Subject to Clause 15.7, if we are found to be liable to you for any reason (including, amongst others, if we are found to be negligent, in breach of contract or to have made a misrepresentation), our liability will be limited to the total purchase Price paid by you for any Lot.
15.7 Notwithstanding the above, nothing in these Terms limits the liability of us or employees or agents for:
15.7.1 death or personal injury resulting from negligence of our employees, agents or subcontractors;
15.7.2 fraud or fraudulent misrepresentation; or
15.7.3 any liability which cannot be excluded by law.
16. Consumer Rights
16.1 If you purchase a Lot as a Consumer, a number of additional terms may be implied by law in addition to the Seller’s warranties (in particular under the Consumer Rights Act 2015). These Terms do not seek to exclude your rights under law. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
17.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
17.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
17.1.2 sent by email to the address provided by each party.
17.2 Any notice shall be deemed to have been received:
17.2.1 if delivered by hand, on signature of a delivery receipt; and
17.2.2 if sent by pre-paid first-class post next working day delivery service, 24 hours after it was posted; and
17.2.3 if sent by email, at the time of transmission.
17.3 This clause 17 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. Data Protection
We will only use your personal information as set out in these Terms for the purposes of this auction. Please see our general terms and conditions for further information.
19.1 We may, acting reasonably, refuse to allow you to bid at our online auction.
19.2 We act as an agent for our Sellers. The rights we have to claim against you for breach of these Terms may be used by either us, our employees or agents, or the Seller, its employees or agents, as appropriate. Other than as set out in this Clause, these Terms are between you and us and no other person will have any rights to enforce any of these Terms.
19.3 We may use special terms in the Listing for particular Lots. You must read these terms carefully along with any glossary provided on our Website.
19.4 This contract is between you and us. No other person shall have any rights to enforce any of its terms.
19.5 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
19.6 We may change these Terms from time to time, without notice to you. Please read these Terms carefully, as they may be different from the last time you read them.
19.7 Except as otherwise stated in these Terms, each of our rights and remedies are:
19.7.1 are in addition to and not exclusive of any other rights or remedies under these Terms or general law; and
19.7.2 may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under these Terms is not a waiver of that or any other right. Partial exercise of any right under these Terms will not preclude any further or other exercise of that right or any other right under these Terms. Waiver of a breach of any term of these Terms will not operate as a waiver of breach of any other term or any subsequent breach of that term.
19.8 These Terms and any dispute or claim arising out of or in connection with them (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
MODEL CANCELLATION FORM
(Complete and return this form only if you wish to withdraw from the contract)
Newlyn School of Art
The Old Board School
I/We hereby give notice that I/We cancel my contract of sale of the following goods,
Brief description of Lot:………………………………
Bid successfully on:………………………………….
Name of consumer:…………………………………….
Signature of consumer(s) (only if this form is notified on paper),