CONDITIONS OF BUSINESS – BUYING AT MELLORS & KIRK
The following pages are the terms on which we will offer the Lot(s) listed in our Catalogue, at the saleroomor online for sale. By registering to bid at our auctions whether that will be in person, over the telephone or online you agree to these terms and you should read them carefully before entering a bid.
WHAT THESE CONDITIONS COVER
The Conditions apply to the services we supply to you as Bidder and Buyer regarding the purchase or holding by Mellors & Kirk of Lot(s).
WHY YOU SHOULD READ THEM
All Bidders and Buyers (including persons duly authorisedto sell Lot(s) by the true owner) prior to bidding on Lot(s) for sale in our saleroom or alternative premises, whether in person, by telephone or online and in delivering Lot(s) to our premises or requesting to arrange for the collection of any Lot(s) from our premises, should read through the terms of these clauses carefully. Particular attention is drawn to clause 13 which contains specific limitations and our exclusion of liability.
INFORMATION ABOUT US
Mellors & Kirk Limited isa 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
INTERPRETATION OF CONDITIONS
1.1 In the Conditions, the following terms shall have the following meanings unless the context otherwise requires:
“Absentee Bids” means a bid on Lot(s) if the Bidder is not able to be physically present, be it through an agent or by telephone, fax or online, a Bidder can place an absentee bid prior to the start of a Mellors and Kirk Auction.
“Auctioneer” means Mellors & Kirk acting in their capacity in conducting auctions by accepting bids and declaring Lot(s) as sold on behalf of the Vendor.
“Bidder” means any person, including such person’s principal when bidding as agent, bidding on Lot(s) at a Mellors & Kirk Auction.
“Buyer” means a person who makes the highest accepted bid, in respect of any Lot(s), accepted by the Auctioneer, including such person’s principal if bidding as agent.
“Buyer’s Premium” means the commission on the Hammer Price realised for the Lot 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 per lot plus VAT.
“Catalogue” includes any advertisement, brochure, estimate, list or other publication of Mellors & Kirk containing details of Lot(s).
“Damage Loss Warranty” means warranty cover entered into by Mellors & Kirk arranged and provided for by 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 are 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 corresponded with the description in the Catalogue.
“Expenses” means, in relation to the sale or aborted sale of any Lot(s), Mellors & Kirk’s charges and expenses incurred, 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 expertisation, taxes, levies, costs of testing, searches or enquiries relating to any Lot(s), carriage, travelling and subsistence costs and postage and packing costs.
“Hammer Price” means the price at which a Lot(s) are knocked down by the Auctioneer to the Buyer, excluding the Buyer’s Premium, any applicable Expenses and any applicable 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.
“Mellors & Kirk Website” means .
“Online Bidding Fee” means the additional charge levied on Lot(s) bought via the online bidding facilities at www.the-saleroom.com www.easyliveauction.com or www.mellorsandkirk.com
“Reserve” the minimum price that the Vendor is willing to accept for their 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, loss warranty any applicable Expenses and VAT.
“Vendor” means the person(s) (including their agent (other than Mellors & Kirk), executors or personal representatives) offering Lot(s) for sale at any Mellors & Kirk Auction. If the Vendor is more than one person, each shall be jointly and severally responsible for of all obligations, liabilities, representations, warranties and indemnities of the Vendor set out in the Conditions of Business – ‘Selling at Mellors &Kirk’.
“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 (plus Damage Loss Warranty and all other Expenses as agreed) of such 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 these Conditions of Business do not form part of these 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 includes a reference to the statute or statutory provision as from time to time amended, extended or reenacted.
2. REGISTRATION PROCESS TO BID AT MELLORS&KIRK AUCTIONS
2.2 If you want to make cash payment for any Lot(s) we will require your proof of identity (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). We don’t accept single or multiple payments in cash in excess of £2,000.00. We are not currently accepting cash payments since May 2020.
2.3 We act as agent for the Vendor from time to time and any contract for the sale of Lot(s) at the Mellors & Kirk Auction, whether placed in person, by telephone, or through Live Online Bidding will be made between the Vendor and the Buyer (except where we have a direct or indirect financial interest in the Lot(s) in which case we will act as principal. If you are bidding solely for yourself you will be held personally liable to pay the purchase price for the Lot(s) and all other sums due.
2.4 All bids must be made in English.
3. IF YOU ARE BIDDING ON BEHALF OF ANOTHER PERSON
If you are bidding on behalf of another person who has been approved by us, you will act as agent for the third party and you and the third party will be jointly and severally liable for the Purchase Price for the Lot(s) plus any other Expenses and fees we reasonably incur.
4. ABSENTEE BIDS
4.1 If we receive two or more Absentee Bids on a particular Lot(s) for the same amounts being the highest accepted bids, we will attempt, to the best of our ability, to sell the Lot(s) to the Bidder whose Absentee Bid was received or accepted first by us.
4.2 Due to other commitments at the busy period prior to the start of a Mellors & Kirk Auction, we do not accept liability for any errors or omissions when dealing with Absentee Bids received by telephone, fax or online.
5. TELEPHONE BIDS
6. ONLINE BIDS
7.CONDUCT OF THE MELLORS & KIRK AUCTION
We have discretion at any time to refuse any bid, withdraw Lot(s) or reoffer Lot(s) for sale if we believe there may be an error or dispute. We do not accept liability for any errors or omissions for any bids received by telephone, or online if the error/omission was beyond our reasonable control.
8. BIDDERS DUTY TO INSPECT THE LOT(S)
8.1 Our knowledge of the Lot(s) is dependent on the information provided by the Vendor and we are not able to carry out exhaustive due diligence of the Lot(s). Also due to the nature of the Lot(s) sold they are likely due to age to show signs of wear and tear, damage, other imperfections, restoration or repair. To assist you when inspecting Lot(s) we do provide condition reports. You will also note that Lot(s) may have other faults not expressly referred to in the Catalogue or condition report. You acknowledge this and accept responsibility for carrying out inspections and investigations to satisfy yourself as to the Lot(s) you may be interested in.
8.2 We make every effort to ensure the accuracy of any statement regarding the Lot(s) made orally or in our Catalogues however we give no representations or warranties on any statement we make in respect of age, attribution, authenticity, authorship, condition, date, origin and provenance of the Lot(s) made orally or in our Catalogues.
8.3 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:
8.3.1 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);
8.3.2 be able to transfer good title in the Lot(s) to us free from any charges or third party claims; and
8.3.3 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.
8.4 The Buyer has no right to a refund in the event of claiming the Lot(s) are a Deliberate Forgery where:
8.4.1 the Catalogue description of the Lot(s) at the time of the sale was the generally accepted opinion of scholars and experts;
8.4.2 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
8.4.3 we were not notified that the Lot(s) may be a Deliberate Forgery by the Buyer within the threeyears from the conclusion of the sale in accordance with clause 8.3.1.
9. AT THE MELLORS & KIRK AUCTION
9.1 Subject to our sole discretion, the person making the highest bid for any Lot(s) that is accepted by the Auctioneer at the Mellors and Kirk Auction will be sold the Lot(s). The striking of the hammer by the Auctioneer marks the acceptance of the highest bid and formation of a contract for the purchase of the Lot(s) between the Vendor and the Buyer. The Buyer shall become legally responsible for the Lot(s) at fall of the hammer. We have the right to lawful possession of the Lot(s) until the Purchase Price any other costs reasonably incurred by Mellors & Kirk in connection with the storage of such Lot(s) has been paid in full and in cleared funds to us. The Buyer will be responsible for arranging and maintaining suitable insurance for the Lot(s) following the conclusion of the Mellors & Kirk Auction.
9.2 If the Buyer fails to collect the purchased Lot(s) within 30 days of the Mellors & Kirk Auction, the Lot(s) will be stored at the Buyers expense and risk by us.
9.3 If the Artists Resale Rights Regulation 2006 were to apply to any Lot(s), the Buyer agrees to pay us an amount equal to the applicable resale royalty provided for in that regulation and we shall undertake to the Buyer to pay that amount to the relevant artist’s collection agent.
9.4 The Buyer will be liable to pay to us the Hammer Price, the Buyer’s Premium, the Online Bidding Fee and any Expenses and any applicable VAT (“Purchase Price”) in pounds sterling. Payment is due by the Buyer immediately following thesale of the Lot(s) irrespective of any export, import or other licences. Card payments by overseas Buyers will be subject to an additional 2% plus VAT of the Purchase Price.
**9.5 You will not become the owner of the Lot(s) until we have received the Purchase Price in cleared funds. We are not obliged to release Lot(s) to the Buyer until you have become the legal owner.
9.6 Following payment of the Purchase Priceincleared funds, the Buyer must collect the Lot(s) from our premises at their own cost by 4.00pm the following Working Day after payment.
9.7 The packing and handling of any Lot(s) is entirely at the Buyer’s risk and expense and we shall not, in any circumstances, be responsible for any acts or omissions of the packers or shippers.
10. NON-PAYMENT OF THE PURCHASE PRICE
10.1 If the Buyer fails to pay us the Purchase Price, we or the Vendor may within seven days of the Mellors & Kirk Auction and at our sole discretion exercise the following rights:
10.1.1 charge interest on the Purchase Price at a rate equal to 4% above Lloyds Bank plc’s base rate from the date of conclusion of the Mellors & Kirk Auction;
10.1.2 store the Lot(s) at the Buyer’s sole risk and expense;
10.1.3 cancel the purchase of any or all of the Lot(s) by the Buyer;
10.1.4 resell the Lot(s) at a Mellors & Kirk Auction or a private salewithout prior notice and the Buyer will be liable for any shortfall arising from the resale together with costs and expenses incurred in connection with the resale;
10.1.5 hold the Buyer in breach of contract and commence County Court proceedings for the recovery of the Purchase Price together with interest, legal fees and all other costs associated with commencement of legal proceedings;
10.1.6 only release Lot(s) we hold upon payment of the Purchase Price and any associated storage costs; and
10.1.7 refuse the Buyer entry into and decline all bids made by the Buyer at any future Mellors & Kirk Auctions.
11. EXPORT AND IMPORT OF LOT(S)
11.1 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 a 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.
Lots made of protected species
11.2 You should check the relevant customs laws and regulations before bidding on any Lot(s) which are made of or including endangered or other protected species of wildlife which includes amongst others: ivory, tortoiseshell, crocodile skin, rhinoceros’ horn, whalebone, certain species of coral and Brazilian rosewood.
11.3 Several countries refuse to import such materials and some countries require a licence from the relevant regulatory agencies.
Lots of Iranian origin
11.4 Some countries prohibit or restrict the purchase and/or import of Iranian origin works of conventional craftsmanship. It is your responsibility to ensure you do not bid on a Lot(s) in contravention of the sanctions or trade embargoes that apply to you.
12.THE EXCLUSION OF CONSUMER RIGHTS LEGISLATION
Where the Lots sold at Mellors & Kirk Auction are for second hand goods and the Buyer has the opportunity of attending the Mellors & Kirk Auction in person, the Buyer will be excluded from statutory consumer remedies and cancellation rights on the purchase of such Lot(s), e.g. vintage electrical and other vintage items sold as collectors’ items or ornaments not intended for use.
13.OUR LIABILITY TO BIDDERS AND BUYERS
13.1 We give no guarantees or warranties to the Buyer and any implied conditions or warranties, whether imposed by the Sale of Goods Act 1979 or otherwise (ii) in particular, any representation or statement we make by or is made on behalf of us, whether orally by any of its directors, officers, employees, agents or sub-contractors or printed in any Catalogue or any 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, provenance, value, fit for purpose, description, size or importance is opinion only, may be amended prior to the Lot being offered for sale (including whilst the Lot is in public view) and is not to be taken as being or implying any warranty or representation of fact by us; and (iii) neither We 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, save for any representations made fraudulently.
13.2 Except as it relates to any liability for death or personal injury resulting from our negligence (for which we in no way seeks to exclude or limit our liability), our liability for any claim brought against us by any Buyer in respect of any Lot(s) shall be limited to the aggregate of the Hammer Price for the Lot(s) and the Buyer’s Premium actually paid to us in respect of the Lot(s).
14.HOW WE USE YOUR PERSONAL DATA
14.1 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, Mellors & Kirk may: (i) request that any Buyer, any Vendor and any Bidder at any Mellors & Kirk Auction, and if so requested that Buyer, that Vendor and that Bidder 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 Buyer, any Vendor and any Bidder at any Mellors & Kirk auction from third parties (e.g. credit information agencies). If any Buyer, any Vendor or any Bidder at any Mellors & Kirk auction provides Mellors & Kirk with any personal data, he agrees that Mellors & Kirk may use it for the above purposes and Mellors & Kirk will not use it for any other purpose without the Buyer’s, the Vendor’s or the Bidder’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.
14.2 New prospective Buyers and previous Buyers who have not made a purchase at any Mellors & Kirk’s auction within the last 2 years will be asked to supply a satisfactory recommendation of creditworthiness from an approved mutual acquaintance of Mellors & Kirk or such other source as Mellors & Kirk may require, along with two forms of identification in order to register to bid at any Mellors & Kirk Auction. If any person is bidding on behalf of a Buyer known to Mellors & Kirk, that person will need to present to Mellors & Kirk a signed letter of authorisation and two forms of identification in order to register to bid on behalf of that Buyer at any Mellors & Kirk auction. Please note that previous Buyers who wish to spend an amount inconsistent with their previous buying patterns will also be asked to supply a new bank reference.
14.3 All Buyers, Vendors and Bidders at any Mellors & Kirk Auction should note that, for security and evidential purposes, Mellors & Kirk’s premises are subject to video recording. Telephone calls to Mellors & Kirk, 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 sold.
17. INTRODUCTORY COMMISSIONS
We reserve the right to pay commission out of any fee that we receive to any third party that introduces property for auction to us. We reserve the absolute right, subject to applicable laws, to keep all details of any such payments confidential to ourselves.
18. PHOTOGRAPHS, ILLUSTRATIONS, IMAGES AND COPYRIGHT
18.1 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) 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 oursoleproperty. We have the right to use such photographs, illustrations, images and written material at any time and in whatever way we deemappropriate, whether or not in connection with the relevant Mellors & Kirk Auction. The Buyer warrants that they shall not use any such photographs, illustrations, images and/or written material of or pertaining to that Lot(s) without our prior written consent and you shall fully indemnify us on a continuing basis against all costs, claims, demands, expenses, losses, damages and liabilities of whatsoever nature arising out of, or in connection with, any breach by us of this warranty.
18.2 The Vendor and Mellors & Kirk 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 will acquire any copyright or other reproduction rights in it.
19. VALUE ADDED TAX
Where these Conditions: (i) refer to any obligation on the Buyer to make payment to us, the Buyer will be liable to pay any VAT required by law or, if applicable, any amount in lieu of VAT.
20.1 These Conditions of Business are not assignable by you without our prior written consent.
20.2 No act, omission or delay by us shall be deemed a waiver or release of any of its rights under these Conditions of Business or otherwise.
20.3 If any provision of these Conditions of Business 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.
20.4 These Conditions of Business set out the entire agreement and understanding between us and you at a Mellors & Kirk Auction.
20.5 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 delivered by hand, it shall be treated as having been received at that time and, if any written notice is sent by facsimile, 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 quote the relevant sale date and either the Vendor’s reference number or the Buyer’s invoice number. Any notice that we send to you shall be addressed to the last address formally notified by us.
20.6 The Contracts (Rights of Third Parties) Act 1999 is excluded by the Conditions and shall not apply to any contract made pursuant to them.
21. LAW AND JURISDICTION
21.1 These Conditions of Business and all aspects or all matters, transactions or disputes to which they relate shall be governed by and construed in accordance with the laws of England. By bidding for any Lot(s) (whether present in person or by agent, by written bid, telephone or online) or offering any Lot(s) for sale at any Mellors & Kirk Auction, 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.
21.2 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.