|APPLICATION OF TERMS AND CONDITIONS FOR VENDORS
|The Terms and Conditions for Vendors should be read by all persons consigning a Lot to Tiancheng for Sale, as they set out the terms and conditions between Tiancheng and the Vendor. Vendors are also subject to the Terms and Conditions of Purchase, which governs the Sale of a Lot.
|TIANCHENG AS AUCTIONEER
|Tiancheng is appointed as agent for the Vendor for the Sale of the Lot.
|The contract for the Sale of the Lot is to be made directly between the Purchaser and the Vendor on the terms set out in the Terms and Conditions of Purchase.
|Tiancheng has no liability to the Purchaser or to the Vendor under the contract of Sale of the Lot.
|The Vendor may withdraw a Lot from Sale by:
|providing Tiancheng with reasonable written notice prior to the auction; and
|subject to Clause 2.6, paying to Tiancheng in full in cleared funds all:
|Tiancheng may at its absolute discretion withdraw a lot from the sale at any time without incurring any liability to the Vendor, including but not limited to if Tiancheng reasonably believes that:
|the Vendor has not been true, complete and accurate in respect of all information provided in respect of the Lot;
|the Vendor has been in breach of any of these Terms and Conditions for Vendors;
|there is reasonable doubt as to the authenticity or attribution of the Lot;
|the Lot requires a CITES licence or sale exemption but does not possess one;
|the Lot is in a condition that is different to the condition upon which Tiancheng agreed to sell the Lot;
|the auction should be or will be postponed, rescheduled or re-organised in any way.
|In the event, the Vendor withdraws a Lot from sale (before Tiancheng has withdrawn the Lot) due to the Vendor reasonably believing that Clause 2.5.3, Clause 2.5.4 and/or Clause 2.5.5 apply to the Lot, then the Vendor shall not be liable to pay the sums referred to in Clause 2.4.2 (b) and 2.4.2 (c), but shall remain liable for the sums referred to in Clause 2.4.2 (a).
|If Tiancheng has knowledge of an actual or potential claim or lien in respect of a Lot, Tiancheng shall be entitled to hold and not release the Lot to the Vendor (or any Purchaser) until Tiancheng is satisfied, in its absolute discretion, that the issue has been resolved in favour of the Vendor (or Purchaser).
|The Vendor is entirely responsible for all descriptions of the Lot and for any statements and representations made in respect of the Lot, so the Vendor must ensure and verify that all information given to Tiancheng about the Lot is true, complete and accurate in all respects.
|Tiancheng is entitled, in its absolute discretion, to determine, the contents of the catalogue, any condition report, and any marketing and promotional items for the Sale of the Lot.
|Tiancheng is not required to, and may well not do any independent due diligence in respect of the Lot.
|Tiancheng is entitled, in its absolute discretion, to conduct independent due diligence, inquiries, testing or research in respect of the Lot, including through the use of external experts, testing laboratories, restorers, agents or other third parties. The Vendor hereby authorises Tiancheng to permit such third parties to have possession of the Lot and agrees that Tiancheng shall not be liable for any acts or omissions of such third parties.
|The Vendor must notify Tiancheng immediately if the Vendor considers any statement, at the auction, in the catalogue, in any condition report, in any marketing materials or other promotional items, or otherwise, which is not entirely true, complete and accurate.
|An estimate of the Sale price of a Lot is merely Tiancheng's estimate, based on its experience as an auctioneer and the recent sale prices of similar property. Such estimates are not to be relied upon by any person, nor are they a statement that the Lot will sell at that Hammer Price, nor are they a valuation of the Lot for insurance, or for any other purpose.
|The attribution of Lots in the catalogue is a matter of Tiancheng's opinion and should not be treated as a statement of fact. Tiancheng's opinion is dependent upon a number of factors, including information provided to it by the Vendor, an initial non-expert examination of the condition of the Lot and any due diligence which Tiancheng determines to conduct, and the status of generally accepted expert opinion at the time of cataloguing. Tiancheng shall honestly exercise reasonable care in compiling catalogue descriptions and condition reports, consistent with its role as a generalist auctioneer of large and varied range of Lots.
|Pre-Sale estimates are included in the catalogue and intended as a guide for Bidders, although Lots can be sold for prices above or below pre-Sale estimates. Any estimate or evaluation or report (in each case written or oral) provided by Tiancheng is merely a genuinely held opinion and cannot be relied by the Vendor.
|Pre-Sale estimates can be amended after the date of publication of the catalogue, so please contact Tiancheng for its current estimate for a particular Lot.
|The Vendor hereby grants to Tiancheng a non-exclusive royalty free licence to photograph, illustrate or otherwise produce images of the Lot.
|The intellectual property rights in all materials (of whatever form) produced by Tiancheng, its employees, agents, officers and/or sub-contractors, including but not limited to the contents of the catalogue and condition reports are and shall remain the exclusive property of Tiancheng, and may not be used without first obtaining Tiancheng's prior written consent.
|The auction of the Lot shall be conducted at the time, at the location and in such manner as Tiancheng determines from time to time, acting in its absolute discretion.
|Tiancheng is entitled, at its complete discretion, at any time before or after the Sale, and with or without notice to:
|refuse any bid;
|refuse any Bidder access to the Sale in person or by telephone;
|proceed with the bidding in the auction in such a manner as Tiancheng determines;
|re-offer a Lot for Sale (including after the fall of the hammer);
|withdraw, combine or divide any Lots;
|determine the successful Bidder.
|The Vendor may not bid or instruct or permit any other person to bid on its behalf for its own Lot. If the Vendor breaches this prohibition, Tiancheng may treat the Vendor as bound as Vendor and as Purchaser (obliged to pay the Purchaser's Premium) but without the benefit of any warranties or the reserve, and/or the ability to pursue any other remedies.
|No reserve may exceed the Lot's final low pre-Sale estimate announced or published by Tiancheng.
|In the event of exchange rate fluctuations affecting a reserve agreed in a currency other than Hong Kong dollars and Tiancheng being unable to agree a revised reserve with the Vendor, the reserve on the Lot shall be an amount equal to the Hong Kong dollar equivalent based on the closing exchange rate available on the Business Day immediately preceding the auction.
|Tiancheng shall in no circumstances be liable if bids are not received at the level of the reserve, but shall be entitled in its discretion to sell the Lot below the reserve and pay the Vendor the Net Sale Proceeds which the Vendor would have received if the Lot had sold at the reserve.
|If any Lot fails to sell at auction, Tiancheng shall be entitled for a period of thirty (30) days following the auction to sell the Lot on the terms of the Terms and Conditions of Purchase, but reference to the date of the auction shall be treated as being a reference to the date of the post-auction Sale.
|Post-auction Sales shall only be accepted if they result in a payment to the Vendor of an amount equivalent to the Net Sale Proceeds for such Lot that the Vendor would have received had the Lot been sold at auction at its reserve price.
|All unsold Lots must be collected by the Vendor from Tiancheng within 30 days of the auction.
|PAYMENT AND TAXES
|Tiancheng shall (unless the Sale is to be rescinded) send to the Vendor the Net Sale Proceeds actually received in cleared funds from the Purchaser, after first:
|setting-off any amounts owed by the Vendor to Tiancheng, within thirty five Business Days of receipt of such cleared funds; and
|withholding any withholding taxes that are applicable in respect of the Sale (including but not limited to any applicable consignment tax).
|Tiancheng is not responsible for the payment of the Purchase Price by the Purchaser.
|In any event, the Vendor is responsible for paying to Tiancheng:
|the Vendor’s Commission; and
each of which shall be deducted from the Hammer Price.
|The Vendor shall be responsible for and undertakes to pay all taxes, stamps and duties due in respect of the Net Sale Proceeds which may be payable outside of Hong Kong and warrants that it has notified Tiancheng in writing of all such taxes, stamps and duties which may be payable by Tiancheng on the Vendor’s behalf outside Hong Kong.
|Tiancheng shall be entitled to withhold part of the Net Sale Proceeds to cover taxes, stamps and duties if it deems it appropriate to do so, it being acknowledged that these are all for the account of the Vendor (unless paid by the Purchaser).
|Tiancheng shall charge the Purchaser the Purchaser's Premium (which belongs to and shall be retained by Tiancheng) in addition to the Hammer Price.
|In accordance with market practice, Tiancheng reserves the right to pay out of its commissions a fee to any third party introducing clients, or Lots to it.
|NON PAYMENT BY THE PURCHASER
|Tiancheng is under no obligation to:
|check the credit of Bidders, or in any other way ensure their ability to pay for a Lot, such as obtain references;
|enforce payment by any Purchaser.
|Tiancheng has absolute discretion whether to take and enforce (at the Vendor's expense) any of the remedies set out in the Terms and Conditions of Purchase.
|Tiancheng will take reasonable steps to inform the Vendor of any action being taken against the Purchaser and shall consult with the Vendor in respect thereof.
|If Tiancheng charges the Purchaser interest for late payment it may retain such interest for its own account.
|If the Purchaser fails to pay the Purchase Price but Tiancheng agrees to remit to the Vendor an amount equal to the Net Sale Proceeds, ownership of the relevant Lot shall immediately pass to Tiancheng, which shall have the benefit of all of the Vendor’s representations, warranties and indemnities set out in these Terms and Conditions for Vendors.
|WARRANTIES AND INDEMNITY
|The Vendor hereby warrants, represents and undertakes to both Tiancheng and to the Purchaser that from the time of the consignment of the Lot to the time of the Lot's Sale, and at all other relevant times that:
|the Vendor has good title to the Lot, which is free from Encumbrances, and the Vendor can pass such title to the Purchaser of the Lot free from any Encumbrance;
|if the Vendor is using an agent for the Sale, that the agent has the Vendor's actual authority for the Sale of the Lot;
|the Lot is not a forgery or fake;
|all statements made by the Vendor in respect of the Lot have been honestly made and are true, accurate and complete in all respects;
|save as otherwise expressly notified to Tiancheng in writing by the Vendor:
|The Vendor hereby agrees to indemnify, keep indemnified and hold harmless Tiancheng from and against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments in respect of a any breach of the Vendor of any of:
|the terms of these Terms and Conditions for Vendors, including but not limited to any breach of the Vendor's representations and warranties; and
|the terms of the Terms and Conditions of Purchase.
|If Tiancheng reasonably considers that has been or may be a breach of any representation, undertaking or warranty made by the Vendor, then Tiancheng shall, at any time, be entitled to rescind the Sale, should it consider it appropriate to do so, acting solely in its own discretion.
|No later than ten days from issue of a notice from Tiancheng for rescission of a Sale, the Vendor shall:
|return to Tiancheng in cleared funds all Net Sale Proceeds previously paid to the Vendor in connection with the Lot; and
|reimburse Tiancheng for any Expenses incurred in connection with the rescinded Sale.
|Provided that Tiancheng has received all of the funds referred to in Clause 8.4 in cleared funds, Tiancheng shall make the Lot available for collection by the Vendor, if Tiancheng is reasonably able to do so, considering matters that are not in Tiancheng's control, such as the acts of third parties.
|EXCLUSIONS AND LIMITATIONS OF LIABILITY TO VENDORS
|Subject to Clause 9.3, but otherwise notwithstanding anything to the contrary set out in these Terms and Conditions for Vendors, Tiancheng shall be under no liability to the Vendor whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any indirect or consequential loss (both of which terms including, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, and like loss) howsoever caused or arising, in relation to or connected with the matters covered by these Terms and Conditions for Vendors.
|Without prejudice to the foregoing clause, and subject to Clause 9.3, but otherwise notwithstanding anything to the contrary set out in these Terms and Conditions for Vendors, Tiancheng's aggregate liability under these Terms and Conditions for Vendors (whether in contract, tort (including negligence), breach of statutory duty, restitution, or otherwise) for any injury, death, damage or direct, indirect, or consequential loss (all three of which terms include, without limitation) pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused will be limited to an amount equal to the Net Sale Proceeds for the relevant Lot.
|Notwithstanding anything to the contrary set out in these Terms and Conditions for Vendors, nothing in these Terms and Conditions for Vendors shall exclude or limit any liability in respect of fraud, death or personal injury caused by negligence or any matter which it would not be permissible at law to exclude or limit liability in respect of.
|Each of Tiancheng's officers, employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability in these Terms and Conditions for Vendors in that person's own name and for that person's own benefit.
|Without prejudice to any of the foregoing, Tiancheng's liability to compensate the Vendor in respect of any loss or damage to the Lot when it is at the risk of Tiancheng shall be limited to the amount set of in Clause 10.3 (a) to (c), less Vendor’s Commission and Expenses.
|Tiancheng will not be liable for any loss or damage caused to frames or to glass covering prints, paintings or other work.
|Tiancheng will not be liable for any loss or damage to a Lot occurring in the course of any process undertaken by third parties (including photo-shooting, restoration, framing or cleaning).
|Without prejudice to any of the foregoing, Tiancheng will not be liable for any loss or damage to a Lot which is caused directly or indirectly or results from:
|humidity, temperature or any form of extreme weather;
|wear and tear in the ordinary course;
|natural deterioration or inherent vice or defect;
|woodworm, insects, or similar infestations;
|errors in any form of processing or testing of the Lot;
|war, nuclear fission or radioactive contamination, chemical, bio-chemical or electro-magnetic weapons, or any act or acts of terrorism (in each case as defined and applied by Tiancheng's insurers from time to time).
|Tiancheng will only accept risk for loss or damage to any Lot from the time that the Lot is accepted by Tiancheng into its premises.
|Tiancheng will cease to accept risk for loss or damage to any Lot from:
|risk passing to the Purchaser following Sale of the Lot in accordance with the Terms and Conditions of Purchase; or
|if a Lot is unsold by auction or private treaty, the earlier of:
|For accepting the risk of loss or damage to any Lot referred to in clause 10.1, the Vendor agrees to pay to Tiancheng an insurance, storage and administration charge, which shall form part of the Expenses, at Tiancheng's rate at the date of consignment, being the stated percentage of:
|If the Vendor does not wish Tiancheng to accept liability for loss or damage to Lots during the period set out in Clause 10.1 and Clause 10.2, then the Vendor:
|undertakes to maintain insurance cover for the Lot during such period;
|agrees to provide Tiancheng with a copy of the certificate of insurance for the Lot during such period and a waiver of subrogation by the Vendor's insurer of all rights and claims which the Vendor may have against Tiancheng, each in a form satisfactory to Tiancheng;
|agrees to indemnify Tiancheng on demand against any claim for loss or damage in respect of the Lot, however such claim may arise and for all related costs or expenses.
|notify the Vendor's insurer of the terms of the indemnity set out in Clause 10.4.3 above;
|waive all rights and claims which the Vendor may have against Tiancheng in connection with such loss or damage, other than in circumstances where the loss or damage was caused by Tiancheng's wilful misconduct.
|If the Vendor fails to strictly comply with Clause 10.4 above in all respects to the satisfaction of Tiancheng, Tiancheng shall be entitled to insure the Lot and charge the Vendor the relevant Expenses in accordance with Clause 10.3.
|Notices to Tiancheng should be in writing and addressed to the department in charge of the Sale, quoting the reference number specified at the beginning of the catalogue and the reference number on the consignment agreement.
|Notices to Vendors, shall be addressed to the last address formally notified by them to Tiancheng, and failing that the address included in the consignment agreement.
|If any provision of these Terms and Conditions for Vendors are held to be illegal, void, invalid or unenforceable (in whole or in part) by any court of administrative body of competent jurisdiction, that provisions shall to that extent be deemed not to form part of these Terms and Conditions for Vendors but the enforceability of the remainder of these Terms and Conditions for Vendors shall not be affected.
|Vendors may not transfer any of their rights or obligations under these Terms and Conditions for Vendors to another person without Tiancheng's prior written consent.
|Tiancheng can transfer all or any of its rights and obligations under these Terms and Conditions for Vendors to another person.
|LAW AND JURISDICTION
|These Terms and Conditions for Vendors shall be governed by Hong Kong law.
|The Vendor irrevocably agrees that the Hong Kong courts shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions for Vendors.
|Any proceedings Tiancheng commences for the recovery of sums owed to Tiancheng will, at Tiancheng's discretion, be subject to the jurisdiction of the Hong Kong courts and/or the courts of any other jurisdiction.
|If there is any inconsistency between the English and the Chinese versions of these Terms and Conditions for Vendors, the English version shall prevail.
|The Vendor irrevocably agrees that Tiancheng can serve proceedings on the Vendor by any means permissible by the law of the jurisdiction in which proceedings are being commenced by Tiancheng.
|The Vendor irrevocably agrees that Tiancheng can serve proceedings on any person and/or at any address notified by the Vendor to Tiancheng from time to time as the Vendor's last contact address and/or any other address where Tiancheng reasonably believes the Vendor can be contacted, including but not limited to the address set out in the Consignment Agreement for the Lot.
|The definitions in this clause apply to the terms and conditions set out in these Terms and Conditions for Vendors:
"Bidders" persons who have registered with Tiancheng, in accordance with the Terms and Conditions of Purchase, to bid at an auction;
"Business Day" a day in Hong Kong other than a Saturday, Sunday or public holiday, when the banks are open to the general public for business;
"Encumbrance" means any right, interest or equity of any person (including any right to acquire, option or right of pre-emption) or any mortgage, charge, pledge, lien, restriction, assignment, hypothecation or other security interest of any kind or any other type of arrangement (including a title transfer and retention arrangement) having similar effect or any other encumbrance of any kind;
"Expenses" are Tiancheng’s charges and expenses in relation to the Sale of any Lot, including legal expenses, charges and expenses for assumption of liability for loss or damage, catalogue and other reproductions and illustrations, any customs duties, advertising, packing or shipping costs, fees for reproduction rights’, taxes, levies, costs of testing, searches or enquiries relating to any Lot, or costs of collection from a defaulting Purchaser;
"Hammer Price" is the highest bid accepted by the auctioneer by the fall of the hammer, or in the case of a post-auction Sale, the agreed Sale price;
"Hong Kong" the Hong Kong Special Administrative Region of the People’s Republic of China;
"Lot" any item consigned to Tiancheng with a view to its Sale by auction or by private treaty (and any reference to any Lot will include, unless the context otherwise requires, reference to individual items comprised in a group of two or more items offered for Sale as one Lot);
"Net Sale Proceeds" are the Hammer Price of the Lot sold, actually received in cleared funds by Tiancheng after deducting the Vendor’s Commission and Expenses;
"Purchaser" is the person who makes the highest bid or offer accepted by the auctioneer, and such person's principal where bidding as agent;
"Purchaser's Premium" is the commission payable by the Purchaser on the Hammer Price, being 20% of the Hammer Price of each Lot;
"Purchase Price" is the Hammer Price and the applicable Purchaser's Premium;
"Sale" the sale of a Lot from the Vendor to the Purchaser by auction or by private treaty;
"Terms and Conditions of Purchase" the terms and conditions of Purchase, contained in the Catalogue, copies of which are available upon request;
"Terms and Conditions for Vendors" these terms and conditions for Vendors;
"Tiancheng" means Tiancheng International Auctioneer Limited (registered in Hong Kong with Company Number 1549011) whose registered office is at 30/F Bank of China Tower, 1 Garden Road, Central, Hong Kong;
"Vendor" means the person offering the Lot for Sale as owner of the Lot, or as executors or personal representatives of the owner of the Lot, or as the duly authorised representative of the owner of the Lot who is in possession of the Lot and entitled to offer it for Sale, in each case as more particularly specified on the consignment agreement submitted to Tiancheng. If the person listed on the consignment agreement is an agent (declared or undeclared) the term "Vendor" shall apply to both the agent and the principal (disclosed or undisclosed). Multiple owners, agents or persons in possession shall jointly and severally assume all obligations, liabilities, representations, warranties and indemnities as set forth in these Terms and Conditions for Vendors; and
"Vendor’s Commission" is the commission payable to Tiancheng by a Vendor at the date of Sale of the Lot at the rates set out by Tiancheng and the terms of which are incorporated in these Terms and Conditions for Vendors.