CONDITIONS OF BUSINESS – SELLING AT MELLORS & KIRK
The following pages are the terms on which we will act for you as agent in selling the Lot(s), at our saleroom.Any instruction for the sale of Lot(s) at a Mellors & Kirk Auction, whether placed by you in person or over the telephone will result in a contract being made between us on these Conditions of Business.
WHAT THESE CONDITIONS COVER
These Conditions apply to the services we supply to you as a Vendor regarding the sale, or holding of your Lot(s) by us.
WHY YOU SHOULD READ THEM
All Vendors (including those authorised to sell Lot(s) by the true owner) should read through the clauses of these Conditions of Business carefully prior to:
- offering Lot(s) for sale through us; or
- delivering or requesting us to arrange for the collection of any Lot(s) for delivery to our premises.
INFORMATION ABOUT US
We are Mellors & Kirk Limited a company registered in England and Wales. Our company registration number is 02324756 and our registered office is at 29 Arboretum Street, Nottingham, Nottinghamshire, NG1 4JA.
HOW TO CONTACT US
You can contact us by telephoning 0115 979 0000 or by writing to us at enquiries@mellorsandkirk.com.
INTERPRETATION OF CONDITIONS
1. DEFINITIONS
1.1 In the Conditions, the following terms shall have the following meanings unless the context otherwise requires:
“Auctioneer” means Mellors & Kirk acting in our capacity in conducting auctions by accepting bids and declaring Lot(s) as sold on behalf the Vendor.
“Bidder” means any person, including such person’s representative when bidding on behalf of that person, bidding on Lot(s) at a Mellors & Kirk Auction.
“Buyer” means a person who makes the highest bid, in respect of any Lot(s), accepted by the Auctioneer, including such person’s representative when bidding on behalf of that person.
“Buyer’s Premium” means the commission on the Hammer Price realised on the sale of the Lot(s) in question payable to Mellors & Kirk by the Buyer at a flat rate of 24% of such Hammer Price plus VAT, subject to a minimum of £6.00 per Lot plus VAT.
“Catalogue” includes any advertisement, brochure, estimate, list or other publication of Mellors & Kirk containing details of Lot(s).
“Cataloguing Date” the preparation of a Catalogue description and sale price estimate for the Lot(s) prior to the Mellors & Kirk Auction and the date it is included within our Catalogue.
“Damage Loss Warranty” means warranty cover entered into by Mellors & Kirk arranged and provided for by a regulated insurance provider on the Lot(s) which covers loss and accidental damage of the Lot(s).
“Deliberate Forgery” means Lot(s) that in our reasonable opinion is an imitation created to deceive as to age, authorship, culture, date, origin, period or source, where the correct description of such matters is not reflected by the corresponding description in the Catalogue, and which at the date of sale had a value materially less than it would have had if the Lot(s) had matched the corresponding description in the Catalogue.
“Expenses” means, in relation to the sale or aborted sale of any Lot(s), Mellors & Kirk’s charges and expenses, including (but not limited to) legal expenses, charges and expenses for insurance, Catalogue and other reproductions and illustrations, special advertising and promotion, reproduction rights’ fees and resale royalties, fees for consultancy services and the process of authenticating items in a Lot(s), taxes, levies, costs of testing, searches or enquiries relating to any Lot(s), transport, travelling and subsistence costs and postage and packing costs.
“Hammer Price” means the winning bid for a Lot(s) at a Mellors and Kirk Auction. It is the price on which the Auctioneer’s hammer falls, excluding the Buyer’s Premium, any applicable Expenses and VAT.
“Live Online Bidding” means the live online bidding performed via ‘the-saleroom.com’and any other Mellors and Kirk authorised online platforms from time to time.
“Lot(s)” means items offered for sale at a Mellors & Kirk Auction.
“Mellors & Kirk” “We” “Us” “Our” means Mellors & Kirk Limited, incorporated and registered in England with company number 02324756 and whose registered office is at 29 Arboretum Street, Nottingham, Nottinghamshire NG1 4JA.
“Mellors & Kirk Auction” means a public auction organised and administered by Mellors & Kirk as Auctioneer.
“Mellors & Kirk Website” means .
“Online Bidding Fee” means the additional charge of 4.95% plus VAT levied on Lot(s) bought via the online bidding facility at www.the-saleroom.com.
“Reserve” the minimum price that the Vendor is willing to accept for a Lot(s) sold at a Mellors & Kirk Auction.
“Sale Proceeds” means the total net amount due to the Vendor by Mellors & Kirk and is calculated as being the Hammer Price, less the Vendor’s Commission, insurance, any applicable Expenses and VAT.
“Vendor” “You” means the person(s) (including their representative (other than Mellors & Kirk), executors or personal representatives) offering Lot(s) for sale at any Mellors & Kirk Auction or through and by whom Mellors & Kirk is authorised to sell such Lot(s).
“Vendor’s Commission” means the commission on the Hammer Price realised for the Lot(s) in question payable to Mellors & Kirk by the Vendor at a flat rate of 15% plus VAT of the Hammer Price.
“Working Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.2 In these Conditions of Business, words denoting a singular number only shall include the plural and vice versa and references to the masculine gender shall include the feminine.
1.3 The headings and sub-headings in the Conditions of Business do not form part of the Conditions of Business themselves but are for convenience only and do not affect their construction.
1.4 Reference to any statute or statutory provision in the Conditions of Business includes a reference to the statute or statutory provision as from time to time amended, extended or reenacted.
2. REGISTRATION PROCESS TO SELL LOT(S) AT MELLORS & KIRK AUCTIONS
If this will be your first time selling at a Mellors & Kirk Auction or if you haven’t sold anything through us for the last two years you must complete a registration form and provide any information as we will require. This includes identification to verify you (such as passport or driving licence) and proof of your address dated from the last three months (council tax bill/bank statement/utility bill are accepted) and also your bank details. Details of how we use your personal information can be found in our Privacy Policy on our website at . We may, at our sole discretion, if you fail to complete any identification and anti-money laundering checks to our satisfaction decline to permit you to register as a Vendor and also entry into our premises.
3. ACTING FOR YOU
2.1 We act as your agent to sell your Lot(s). Any instruction for the sale of Lot(s) at the Mellors & Kirk Auction, whether placed by you in person or over the phone, email or online will result in a contract made between us on these Conditions of Business. If Vendor is multiple persons, each shall be jointly and individually liable for all obligations, liabilities, representations, warranties and indemnities of the Vendor in the Conditions of Business.
2.2 INFORMATION PROVIDED TO YOU PRIOR TO SELLING YOUR LOT(S)
2.2.1 Following your request to use our services and acceptance of our Conditions of Business whether concluded at our premises by telephone, fax or online, the following information will be provided:
2.2.2.1 details of what services we are providing to you;
2.2.2.2 how much it will cost;
2.2.2.3 additional delivery charges if we are to collect the Lot(s);
2.2.2.4 when you must pay us; and
2.2.2.5 when we will be selling your Lot(s) (i.e. which Mellors & Kirk Auction the Lot(s) will be sold at).
3. SELLING YOUR LOT(S)
3.1 If our performance of the services under these Conditions of Business are affected by an event outside our control then we will contact you as soon as possible letting you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay due to an event outside our control, you may contact us to end the use of our services and receive a refund for any services you have paid for but not received.
3.2 If you have asked us to collect the Lot(s) as part of our services and we are unable to collect the Lot(s) as arranged (and you do not have a good reason for this) we may charge you additional costs we have incurred as a result.
3.3 Prior to offering the Lot(s) for sale at a Mellors & Kirk Auction, we reserve the right to decide:
3.3.1 the way the Lot(s) may be combined or divided into Lot(s) for sale;
3.3.2 the way in which Lot(s) are included in the sale;
3.3.3 the way in which Lot(s) are described or illustrated in the Catalogue or any condition report;
3.3.4 the date and place of any Mellors & Kirk Auction; and
3.3.5 the manner in which any sale is carried out.
3.7 We reserve the right to consult with and rely on any outside experts, consultants or restorers of our choice in relation to any Lot(s) and to carry out other enquiries or tests in relation to the Lot(s) either before or after the sale as we think appropriate. However, this is a matter for our discretion and we shall be under no duty or obligation to carry out any such consultation, enquiries or tests in respect of any Lot(s).
3.8 We will, at your expense, insure the Lot(s) that you provide to us and we will be responsible for the Lot(s) until the Buyer acquires the Lot(s).
4. ESTIMATES
Any sale price estimate that we give to you for any Lot(s), whether by us saying it to you orally or in the Catalogue or otherwise is an expression of opinion and intended only as a guide. It should not be in any way relied upon as a statement that the estimated selling price is the price at which the Lot(s) will sell or its value for any other purpose. As any estimate can be subject to change, it is advisable to speak with us as to the estimated selling price of any Lot(s) nearer the time of the sale.
5. YOUR RIGHT TO CANCEL THE SERVICES
If you decide not to proceed and cancel use of our services eight (8) weeks or less prior to the date of a Mellors & Kirk Auction for your Lot(s), you will be liable to pay a withdrawal fee calculated in accordance with clause 8.1.
6. OUR RIGHTS TO WITHDRAW THE SERVICES
6.1 At our sole discretion, we can withdraw any Lot(s) from sale without any liability if:
6.1.1 we believe that there is any doubt as to the Lot(s) authenticity;
6.1.2 it is established or alleged that there is a breach of the warranties given by you in clause 8;
6.1.3 you materially breach any of the terms in these Conditions of Business;
6.1.4 the Lot(s) contains any endangered species for which a sales exemption under the Convention on International Trade in Endangered Species is required and such a sales exemption has not been granted by the day before the first day of the viewing of the Mellors & Kirk Auction for which the Lot(s) are offered for sale;
6.1.5 we consider the Lot(s) to be of insufficient sale value;
6.1.6 the Lot(s) are lost or damaged so that it is not in the state in which it was when we agreed to sell it;
6.1.7 the Mellors & Kirk Auction at which the Lot(s) was proposed to be put on sale is postponed for any reason or
6.1.8 we become aware that there is a competing title claim, right of possession by a third party over the Lot(s) or a debt secured over the Lot(s).
6.2 If we remove any Lot(s) from sale for any reason other than a breach of the warranties at clause 8 or any serious breach by you of any of the terms of these Conditions of Business, you shall not be charged a withdrawal fee as long as there is no competing title claim, right of possession by a third party over the Lot(s) or a debt secured over the Lot(s).
7. WITHDRAWAL FEE
If any Lot(s) are withdrawn from sale by us because of a breach of the warranties given by you in clause 8 or there is any serious breach by you of any of these Conditions of Business or our services are cancelled by you after the applicable time set out in clause 5.1, we are entitled to charge you a withdrawal fee of 15% of: (i) the Reserve for the withdrawn Lot(s); or (ii) if unreserved, our mid presale estimate for the applicable withdrawn Lot(s) at the time of cancellation, together with any applicable Expenses and any applicable VAT. We will not be obliged to withdraw any Lot(s) or to return it to you unless you have made full payment to us of the applicable withdrawal fee, Expenses and VAT in pounds sterling and in cleared funds.
8.VENDOR WARRANTIES
8.1 You warrant to us and the Buyer that:
8.1.1 you are the true owner of the Lot(s) offered for sale or are properly authorised to sell the Lot(s) by the true owner;
8.1.2 you are able to and shall transfer a good title to the Lot(s) free from any third party rights or claims;
8.1.3 you are able to transfer ownership of the Lot(s) to the Buyer;
8.1.4 you have provided us with all information concerning the provenance of the Lot(s) and have notified us in writing of any concerns expressed by third parties in relation to the age, attribution, authenticity, authorship, condition, date, origin, ownership or place of origin of the Lot(s) or its export or import;
8.1.5 the details of the Lot(s) you provide to us are true and complete;
8.1.6 you are unaware of any matter or allegation that would make any description given by us in relation to the Lot(s) inaccurate or misleading;
8.1.7 where the Lot(s) has been moved to the European Union from a country that is not a member state of the European Union, the Lot(s) has been lawfully imported in to the European Union, that the Lot(s) has been lawfully and permanently exported as required by the laws of any country in which it has been located, and you provided the required declarations for the export and import of the Lot(s) and all duties and taxes on the export and import of the Lot(s) have been fully paid;
8.1.8 you have or will pay all duties and taxes on the Sale Proceeds in respect of the Lot(s) and has notified us in writing of any duties and/or taxes that are payable by us on our behalf in any country other than the country of sale;
8.1.9 there are no restrictions, copyright or otherwise, relating to the Lot(s) (other than those imposed by law) and no restrictions on our rights to reproduce photographs or other images of the Lot(s) other than those (if any) of which you have advised us in writing at the time of delivering the Lot(s) to us; and
8.1.10 the Lot(s), if they are electrical or mechanical Lot(s), are in safe operating condition if reasonably used for the purpose it was designed and it is in working order and free from any defect not obvious on external inspection that could prove dangerous to human life or health other than in those respects (if any) of which you have advised us in writing at the time of delivering the Lot(s) to us.
8.2 Notwithstanding any warranty given by you in clause 8.1, we reserve the right to test (and charge you for the cost) any of the electrical or mechanical Lot(s). If the Lot(s) fail to conform to all the applicable safety standards we reserve the right to refuse to sell these Lot(s).
8.3 If we or the Buyer considers any of the warranties given by you in clause 8.1 to be not complied with in any way, we and/or the Buyer may take legal action against you. You undertake to fully indemnify us, our directors, officers, employees, agents and sub-contractors and the Buyer against any loss or damage they incur or suffer in consequence of any breach by you of any of the warranties given in clause 8.1 or any other terms of these Conditions of Business.
8.4 Any representation or statement made by or our behalf of us, whether orally by any of our directors, officers, employees, agents or sub-contractors or printed in any Catalogue, advertisement brochure, commentary, list, report or valuation, concerning any aspect or quality of any Lot(s), including age, attribution, authenticity, authorship, condition, date, origin, price, place of origin or value is opinion only and may be changed prior to the Lot(s) being offered for sale (including whilst the Lot(s) is on public view) and is not to be taken as being or implying any warranty or representation of fact by us. Neither us nor any of our directors, officers, employees, agents or sub-contractors shall be in any way liable for any errors or omissions in any such representations or statements, except for any representations made fraudulently.
8.5 Without prejudice to Clause 14, and except as it relates to any liability for death or personal injury resulting from our negligence (liability for which we in no way seek to exclude or limit), our liability for any claim brought against us by you in respect of any Lot(s) shall be limited to the Sale Proceeds for that Lot(s).
9. AT THE SALE OF THE LOT(S) BY US
9.1 All Lot(s) are offered for sale without Reserve unless we receive your written instructions and we agree to it prior to the day of the Mellors & Kirk Auction. If we do not agree, at our sole discretion we can treat the Lot(s) as being withdrawn from sale at the Mellors & Kirk Auction and you will be charged accordingly. Any agreed Reserve shall be: (i) the confidential minimum Hammer Price below which the Lot(s) will not be sold; (ii) no higher than our low presale estimate for the Lot(s) at the time of the relevant Mellors & Kirk Auction; and (iii) subject to 10% discretion.
9.2 Where any Lot(s) is offered for sale subject to an agreed Reserve, the Auctioneer may open the bidding on the Lot(s) below its Reserve by placing a bid on your behalf and may continue to bid on your behalf up to the amount of one bid below the Reserve either by placing consecutive bids or by placing bids in response to other Bidders, although the Auctioneer will not indicate during the Mellors & Kirk Auction that they are making such bids on your behalf.
9.3 Only the Auctioneer is authorised to bid on your behalf for any Lot(s) offered subject to an agreed Reserve or at the Auctioneer’s discretion. We shall not be liable if bids are not received for any Lot(s) at the level of your agreed Reserve but shall be entitled, in our absolute discretion, to sell the Lot(s) below the Reserve and pay you the Sale Proceeds that you would have received if the Lot(s) had sold at the Reserve.
9.4 You will not in person, online or through a representative except the Auctioneer bid for your own Lot(s) at a Mellors & Kirk Auction.
10. FOLLOWING THE SALE OF THE LOT(S) BY US
Following the sale of any Lot(s), you will pay us the Vendor’s Commission, any applicable Expenses and VAT. You authorise us to deduct the Vendor’s Commission, Expenses paid by the Vendor and VAT from the Hammer Price.
11. REMITTANCE OF THE SALE PROCEEDS TO YOU
11.1 Unless we have been notified by the Buyer of the intention to cancel the sale of the Lot(s) on the basis that the Lot(s) are a Deliberate Forgery, we will pay you the Sale Proceeds , after deducting the Vendor’s Commission, insurance charges and any other applicable Expenses and VAT, 21 Working Days after the sale of the Lot(s), provided that we have been paid the Hammer Price, the Buyer’s Premium, any applicable Expenses and VAT in full by the Buyer in pounds sterling and in cleared funds.
11.2 You should note that the Sale Proceeds payable are derived from the actual proceeds of sale received by us from the Buyer in respect of the Lot(s) in question and, as such, we are not under any obligation to pay the Sale Proceeds to you until payment is received in full from the Buyer (although we reserve the right to do so). In the event that payment is not received in full from the Buyer within 21 Working Days of the sale of the Lot(s) in question, we will pay you the Sale Proceeds five (5) Working Days after such payment has been received in full from the Buyer.
12. FAILURE OF THE BUYER TO MAKE PAYMENT OF THE SALE PROCEEDS
12.1 If full payment has not been received in full from the Buyer, 30 Working Days following the sale of the Lot(s) in question, we will speak to you about the appropriate course of action to take to recover the amount due, notwithstanding that you authorise us to take such steps on your behalf as we think necessary to attempt to recover monies due from the Buyer, including (without limitation) the right to charge the Buyer interest for late payment. You authorise us to keep any interest recovered together with any interest that may be accrued on the deposit of any proceeds of sale in our client bank account of Mellors & Kirk at Lloyds Bank, Old Market Square, Nottingham.
12.2 We are not obligated to chase any Buyer for any amount(s) due, nor shall we be under any obligation to enforce payment from any Buyer or to undertake legal proceedings to recover the outstanding payment. You shall inform us of any action that you chooses to take against the Buyer to enforce payment of the amount due, notwithstanding that our rights to take and enforce any of the rights or remedies which includes the right to cancel the sale and return the Lot(s) in question to you. If the Buyer fails to pay the full amount due on any Lot(s) in cleared funds but we have agreed to pay you the Sale Proceeds for that Lot(s), we will own the Lot(s) and we will have the benefit of all obligations given by your in these Conditions of Business.
13. REFUND SALE PROCEEDS TO BUYER IN THE EVENT OF LOT(S) BEING A DELIBERATE FORGERY
13.1 Where we consider, at our sole discretion that any Lot(s) are proven to be a Deliberate Forgery, We are authorised to cancel the sale and refund to the Buyer any amount paid to us strictly pursuant to clauses 13.2 and 13.3 in respect of the Lot(s) in question and shall advise you of the cancellation. Within 7 Working Days of us providing you with notification of cancellation you will: (i) return to us any Sale Proceeds already paid by us to you; and (ii) reimburse us for any Expenses incurred in connection with the aborted sale.
13.2 If we sell Lot(s) at Mellors & Kirk Auctions, which prove to be a Deliberate Forgery, we shall refund only to the Buyer the total amount paid, this being the total amount the Buyer can recover from us. Neither we nor the Vendor will be liable for any special, indirect or consequential losses or damages that the Buyer incurs as a result of the Lot(s) proving to be a Deliberate Forgery. In the event the Buyer believes the Lot(s) to be a Deliberate Forgery, the Buyer must:
13.2.1 notify us (i) no later than three years following conclusion of the sale of the relevant Lot(s); (ii) of the date of the Mellors & Kirk Auction the relevant Lot(s) were purchased at and (iii) within 14 days of the Buyer receiving any information that makes them question the authenticity or attribution of the Lot(s);
13.2.2 be able to transfer good title in the Lot(s) to us free from any charges or third party claims; and
13.2.3 on our instruction and at their cost instruct two independent experts agreed by the parties to provide advice on whether the Lot(s) are a Deliberate Forgery. After deliberating the contents of the expert reports and at our sole discretion (not being bound by such experts conclusions) if we determine that the Lot(s) are a Deliberate Forgery we will refund the total amount paid.
13.3 The Buyer has no right to a refund in the event of claiming the Lot(s) are a Deliberate Forgery where:
13.3.1 the Catalogue description of the Lot(s) at the time of the sale was the generally accepted opinion of scholars and experts;
13.3.2 if, at the date of its sale the only way of confirming the Lot(s) were a Deliberate Forgery was by scientific or other processes which were not available until after the Lot(s) was published in the Catalogue; or
13.3.3 we were not notified that the Lot(s) may be a Deliberate Forgery by the Buyer within the three years from the conclusion of the sale in accordance with clause 13.2.1.
14. IF RESERVED LOT(S) REMAINS UNSOLD
14.1 If:
(i) any Lot(s) that is Reserved at a Mellors & Kirk Auction remains unsold at the end of the relevant Mellors & Kirk Auction and unless otherwise agreed in writing with us, you authorise us exclusively, until the Lot(s) is removed by or on your behalf of the you, to re-offer the Lot(s) without Reserve in a subsequent Mellors & Kirk Auction or to invite offers to sell the Lot(s) privately for a price that will result in a payment to you of not less than the Sale Proceeds to which you would have been entitled had the Lot(s) been sold at a Mellors and Kirk Auction for a price equal to the Reserve; or
(ii) any unreserved Lot(s) in a Mellors & Kirk Auction remains unsold at the end of the relevant Mellors & Kirk Auction and unless there is a written agreement with us saying otherwise, you authorise us exclusively to re-offer the Lot(s) in Mellors & Kirk Auction or to invite offers and sell the Lot(s) privately at our absolute discretion and, in the event that any such Lot(s) is re-offered at a subsequent Mellors & Kirk Auction, you agree that the Lot(s) will be sold without Reserve. If any Reserved or unreserved Lot(s) of a Mellors & Kirk Auction fails to sell, then you authorises us, unless there is a written agreement, to get rid of the Lot(s) as we sees fit at your expense.
14.2 If any Lot(s) that is Reserved in a Mellors & Kirk Auction remains unsold at the end of the relevant Mellors & Kirk Auction, you authorise us, unless there is a written agreement saying otherwise, to get rid of the Lot(s) without re-offering it at a further auction as an unreserved Lot(s) at your expense and in the event of any unreserved Lot(s) at a Mellors & Kirk Auction remaining unsold at the end of the relevant Mellors & Kirk Auction then you authorises us, unless there is a written agreement with us saying otherwise, to get rid of the Lot(s) as it sees fit at your expense.
14.3 If a post-auction sale of any Lot(s) is agreed, your obligations to us under these Conditions of Business with respect to such Lot(s) are the same as if it had been sold at the auction and any reference in these Conditions of Business to the date of the Mellors & Kirk Auction or sale shall be treated as being a reference to the date of the post-auction sale.
15. REMOVAL OR DELIVERY OF LOT(S)
15.1 We do not undertake the removal or delivery of any Lot(s) but, if requested by you, we will instruct a contractor to remove or deliver on your behalf acting at all times as your representative. We do not accept any responsibility or liability for any loss or damage resulting from the use of any contractor and any claim for any such loss or damage should be pursued directly and solely against the contractor responsible.
15.2 Unless otherwise agreed in writing, you authorise us to get rid of on your behalf any Lot(s): (i) that in our sole opinion, possess no saleable value; and (ii) you agree to fully reimburse us for all our reasonable costs and expenses incurred.
16. DAMAGE LOSS WARRANTY FOR LOTS IN OUR POSSESSION
16.1 Unless otherwise agreed in writing, we will, at your expense and on the terms set out in this clause 16, be responsible for entering into Damage Loss Warranty with a regulated insurance provider for any Lot(s) until such time as the Bidder acquires the Lot(s) or, if the Lot(s) remain unsold, we shall charge you, and you agree to pay, a sum in respect of suchDamage Loss Warranty at a premium of:
16.1.11.25% of the Hammer Price if the Lot(s) are sold (in which case you acknowledges that we will deduct such a sum from the Hammer Price of the Lot(s) as an Expense);
16.1.2 the Reserve for the Lot(s) if the Lot(s) are unsold;
16.1.3 the low presale estimate(s) of the Lot(s) at the time of its delivery if the Lot(s) are unreserved or not offered for sale for any reason;
16.1.4 a reasonable estimate of the auction value of the Lot(s) at the date of its delivery if there is no low presale estimate for the Lot(s). The Lot(s) will be insured whilst in our possession against the risks of fire, theft following forcible entry and water damage but not against accidental breakage, loss or damage however caused unless by our wilful misconduct or negligence;
16.1.5 should any loss or damage occur to any Lot(s) whilst the burden in it is with us and for which we are liable, we shall not be liable to pay you any more than the applicable premium set out in this clause 17.1.5, less any Vendor’s Commission, any applicable Expenses and any applicable VAT;
16.1.6 we shall not be responsible or liable for the damage, loss, theft or destruction of any Lot(s) not so insured upon your instructions, nor will we be responsible or liable for any loss or damage caused by: (i) any third party who we have instructed to deal with the Lot(s) with your consent; (ii) changes in humidity or temperature; (iii) normal wear and tear, gradual deterioration or inherent defect; or (iv) errors in processing. Owing to the age of the majority of Lot(s) and the fragility of antique or other frames and casings, we will not insure against, and shall not be responsible or liable for, any loss or damage caused to any frame, casing, mounting or glass forming part of any Lot(s); or
16.1.5 if you do not want us to have the responsibility for loss or damages cover in any Lot(s) delivered to us, you must agree this with us in writing at that time. In the event that you agree this with us in respect of any Lot(s), you will maintain insurance cover for the Lot(s) until the responsibility for the Lot(s) passes to the Buyer on its sale. In such circumstances, you will: (i) promptly (and in any event no later than seven (7) Working Days after delivery of the Lot(s) in question to us provide us with a copy of the certificate of insurance for the Lot(s); (ii) promptly (and in any event no later than seven (7) Working Days after delivery of the Lot(s) in question to us, obtain a waiver of subrogation by your insurer in a form satisfactory to us of all rights and claims that the insurer may have against us in connection with loss or damage in respect of the Lot(s) and provide us with a copy of such waiver; (iii) indemnify (on a £ for £ basis) us against any claim for loss, damage or costs in respect of the Lot(s) however arising; (iv) immediately notify your insurers of the terms of such indemnity and shall note our interest on the relevant insurance policy; (v) reimburse us on demand for any payments, costs or Expenses, including legal fees, that we incur as a result of any claim for loss, damage or costs in respect of the Lot(s); and (vi) waive all rights and claims that you may have against us in connection with such loss or damage, other than in circumstances where the loss or damage was caused by our wilful misconduct or negligence.
17.EXPORT AND IMPORT OF LOT(S)
The exportation of any Lot(s) from the United Kingdom or the importation into any country may be subject to one or more export, import, firearm, endangered species or other permit. Many countries require a declaration of export of property into the country. Local laws may prevent a Buyer from importing Lot(s). We are not under any obligation to cancel the purchase and refund the Buyer the Purchase Price if the Lot(s) may not be exported, imported or if it is seized by any government authority.
18.HOW WE USE YOUR PERSONAL DATA
18.1 In connection with the management and operation of Mellors & Kirk’s business and the marketing and supply of Mellors & Kirk’s services or as required by law, we may: (i) request that any Vendor at any Mellors & Kirk Auction, and if so requested that Vendor agree to, provide in a form acceptable to Mellors & Kirk written confirmation of their name, permanent address, proof of identity and creditworthiness and any other requested personal data; or (ii) obtain personal data about any Vendor at any Mellors & Kirk Auction from third parties (e.g. credit information agencies). If any Vendor at any Mellors & Kirk Auction provides Mellors & Kirk with any personal data, the Vendor agrees that Mellors & Kirk may use it for the above purposes and Mellors & Kirk will not use it for any other purpose without the Vendor’s prior consent (as applicable) or, in the case of any sensitive personal data as defined in the General Data Protection Regulation 2016/679 and any subsequent supervening legislation, prior explicit consent.
18.2 You should note that, for security and evidential purposes, our premises are subject to video recording. Telephone calls to us, including (without limitation) any telephone bids or voicemail messages, may also be recorded and used for evidential purposes where, for example and without limitation, there is any dispute as to the bidding for or the Hammer Price of any particular Lot(s) sold.
19.PRIVACY POLICY
The Mellors & Kirk Privacy Policy sets out information about what personal data we collect about you as Vendor and how that personal data is used, the terms on which we process any personal data collect from you as Vendor, or that you as Vendor provide to us. The Privacy Policy can be found on our website at .
20.COOKIE POLICY
Mellors & Kirk Cookie Policy sets out information on the use of cookies and the purposes for which cookies are stored and accessed on our website. A link to the Cookie Policy can be found on our website at .
21. EXPORT AND IMPORT RESTRICTIONS
We make no representations or give any warranties as to whether any Lot(s) are subject to any export restrictions from the United Kingdom or any import restrictions from any other country or as to whether any embargoes exist in relation to any particular Lot(s).
22. INTRODUCTORY COMMISSIONS
We reserve the right to pay out any remuneration that we receive to any third party introducing Buyers, Vendors or property for auction to us. We further reserves the absolute right, subject to applicable laws, to keep all details of such payments confidential.
23. PHOTOGRAPHS, ILLUSTRATIONS, IMAGES AND COPYRIGHT
23.1 We shall be entitled to photograph, illustrate or otherwise produce images in our Catalogues, promotional literature and on either our own or any third party’s website of any Lot(s) consigned for sale. The copyright in all such photographs, illustrations, images and written material produced by or for us in relation to any Lot(s) shall remain at all times our property, we shall have the right to use such photographs, illustrations, images and written material at any time and in whatever way it deems appropriate, whether or not in connection with the relevant auction.
23.2 We make no representations and give no warranties as to whether any Lot(s) is subject to copyright or as to whether the Buyer of that Lot(s) will acquire any copyright or other reproduction rights in it.
24. VALUE ADDED TAX
Where these Conditions of Business: (i) refer to any obligation you to make payment to us, or the Buyer (as applicable) will be liable to pay any VAT required by law or, if applicable, any amount in lieu of VAT; and (ii) give us a right to receive payment from you, such right shall include the right to receive any VAT due or, if applicable, any amount in due in lieu of VAT.
25. GENERAL
25.1 These Conditions of Business are not assignable by you without our prior written consent. However, these Conditions of Business shall be binding on any of your successors, permitted assigns, executors, administrators and representatives.
25.2 No act, omission or delay by us shall be deemed a waiver or release of any of our rights under the Conditions of Business or otherwise.
25.3 If any provision of these Conditions is found by any court with jurisdiction to be invalid, illegal or unenforceable for any reason, that provision shall be discounted and the remaining provisions shall continue to have full force and effect.
25.4 The Conditions set out the entire agreement and understanding between us and you at any Mellors & Kirk Auction with respect to the subject matter of these Conditions of Business. It is agreed that, except for liability for fraudulent misrepresentation or concealment, none of the parties have entered into any contract pursuant to the Conditions of Business relying on any representation, warranty or undertaking that is not referred to in these Conditions of Business. We in no way seek to exclude or limit our liability for fraudulent misrepresentation or concealment.
25.5 Any notice or other communication shall be in writing and, if sent by post, shall be deemed to have been received by the addressee on the second working day after posting or, if the addressee is based outside the United Kingdom, on the fifth working day after posting. If any written notice is hand delivered, it shall be treated as having been received at that time and, if any written notice is sent by fax, it shall be deemed to have been received 24 hours after sending. Any notice sent to us should be sent to The Auction House, Gregory Street, Nottingham, NG7 2NL and quoting the relevant sale date and your reference number. Any notice that we send to you shall be addressed to the last address formally notified by them to us.
25.6 No third party has any rights under these Conditions of Business. This contract is between you as Vendor and us. No other party shall have any rights to enforce any of its terms. Neither of us will need to get the agreement of any third party in order to end this contract or make any changes to these terms.
26. LAW AND JURISDICTION
26.1 These Conditions of Business are governed by English law and either party can bring legal proceedings in the English courts. By selling Lot(s) the exclusive jurisdiction of the English Courts will apply to settle all disputes arising in connection with all aspects of all matters under these Conditions of Business.
26.2 You consent to service of process or any other documents in connection with any legal proceedings by personal service, delivery by mail, facsimile transmission or in any other manner permitted by the laws of England or the law of the place of service at your last address known to us or any other usual address.
