HK/NTB/MAIN/5.2023
accordance with this paragraph, the Seller will have the rights
set out in paragraph 8 below.
7 COLLECTION OF THE LOT
7.1 Unless otherwise agreed in writing with you by Bonhams,
the Lot will be released to you or to your order only when
Bonhams has received cleared funds to the amount of the full
Purchase Price and all other sums owed by you to the Seller
and to Bonhams.
7.2 The Seller is entitled to withhold possession from you of any
other Lot he has sold to you at the same or at any other Sale
and whether currently in Bonhams’ possession or not until
payment in full and in cleared funds of the Purchase Price and
all other sums due to the Seller and/or Bonhams in respect of
the Lot.
7.3 You will collect and remove the Lot at your own expense
from Bonhams’ custody and/or control or from the Storage
Contractor’s custody in accordance with Bonhams’
instructions or requirements.
7.4 You will be wholly responsible for packing, handling and
transport of the Lot on collection and for complying with all
import or export regulations in connection with the Lot.
7.5 You will be wholly responsible for any removal, storage or
other charges or expenses incurred by the Seller if you do
not remove the Lot in accordance with this paragraph 7 and
will indemnify the Seller against all charges, costs, including
any legal costs and fees, expenses and losses suffered by
the Seller by reason of your failure to remove the Lot including
any charges due under any Storage Contract. All such sums
due to the Seller will be payable on demand.
8 FAILURE TO PAY FOR THE LOT
8.1 If the Purchase Price for a Lot is not paid to Bonhams in full
in accordance with the Contract for Sale the Seller will be
entitled, with the prior written agreement of Bonhams but
without further notice to you, to exercise one or more of the
following rights (whether through Bonhams or otherwise):
8.1.1 to terminate immediately the Contract for Sale of the Lot for
your breach of contract;
8.1.2 to re-sell the Lot by auction, private treaty or any other means
on giving seven days’ written notice to you of the intention to
resell;
8.1.3 to retain possession of the Lot;
8.1.4 to remove and store the Lot at your expense;
8.1.5 to take legal proceedings against you for any sum due under
the Contract for Sale and/or damages for breach of contract;
8.1.6 to be paid interest on any monies due (after as well as before
judgement or order) at the annual rate of 5% per annum
above the base rate of Standard Chartered Bank (Hong Kong)
Limited from time to time to be calculated on a daily basis
from the date upon which such monies become payable until
the date of actual payment;
8.1.7 to repossess the Lot (or any part thereof) which has not
become your property, and for this purpose you hereby grant
an irrevocable licence to the Seller by himself and to his
servants or agents to enter upon all or any of your premises
(with or without vehicles) during normal Business hours to
take possession of the Lot or part thereof;
8.1.8 to retain possession of any other property sold to you by the
Seller at the Sale or any other auction or by private treaty until
all sums due under the Contract for Sale shall have been paid
in full in cleared funds;
8.1.9 to retain possession of, and on three months’ written notice
to sell, Without Reserve, any of your other property in the
possession of the Seller and/or of Bonhams (as bailee for
the Seller) for any purpose (including, without limitation, other
goods sold to you) and to apply any monies due to you as a
result of such sale in satisfaction or part satisfaction of any
amounts owed to the Seller or to Bonhams; and
8.1.10 so long as such goods remain in the possession of the Seller
or Bonhams as its bailee, to rescind the contract for the Sale
of any other goods sold to you by the Seller at the Sale or at
any other auction or by private treaty and apply any monies
received from you in respect of such goods in part or full
satisfaction of any amounts owed to the Seller or to Bonhams
by you.
8.2 You agree to indemnify the Seller against all legal and other
costs of enforcement, all losses and other expenses and
costs (including any monies payable to Bonhams in order to
obtain the release of the Lot) incurred by the Seller (whether
or not court proceedings will have been issued) as a result
of Bonhams taking steps under this paragraph 8 on a full
indemnity basis together with interest thereon (after as well as
before judgement or order) at the rate specified in paragraph
8.1.6 from the date upon which the Seller becomes liable to
pay the same until payment by you.
8.3 On any re-sale of the Lot under paragraph 8.1.2, the Seller
will account to you in respect of any balance remaining from
any monies received by him or on his behalf in respect of the
Lot, after the payment of all sums due to the Seller and to
Bonhams, within 28 days of receipt of such monies by him or
on his behalf.
9 THE SELLER’S LIABILITY
9.1 The Seller will not be liable for any injury, loss or damage
caused by the Lot after the fall of the Auctioneer’s hammer in
respect of the Lot.
9.2 Subject to paragraphs 9.3 to 9.5 below, except for breach
of the express undertaking provided in paragraph 2.1.5,
the Seller will not be liable for any breach of any term that
the Lot will correspond with any Description applied to it
by or on behalf of the Seller, whether implied by the Sale of
Goods Ordinance (Chapter 26 of the Laws of Hong Kong) or
otherwise.
9.3 The Seller will not be liable (whether in negligence, other tort,
breach of contract or statutory duty or in restitution or under
the Misrepresentation Ordinance (Chapter 284 of the Laws of
Hong Kong), or in any other way) for any lack of conformity
with, or inaccuracy, error, misdescription or omission in any
Description of the Lot or any Entry or Estimate in relation to the
Lot made by or on behalf of the Seller (whether made in writing,
including in the Catalogue, or on the Website, or orally, or by
conduct or otherwise) and whether made before or after this
agreement or prior to or during the Sale.
9.4 The Seller will not be liable for any loss of Business, Business
profits or revenue or income or for loss of reputation or
for disruption to Business or wasted time on the part of
the Buyer or of the Buyer’s management or staff or, for
any indirect losses or consequential damages of any kind,
irrespective in any case of the nature, volume or source of
the loss or damage alleged to be suffered, and irrespective
of whether the said loss or damage is caused by or claimed
in respect of any negligence, other tort, breach of contract,
statutory duty, restitutionary claim or otherwise;
9.5 In any circumstances where the Seller is liable to you in
respect of the Lot, or any act, omission, statement, or
representation in respect of it, or this agreement or its
performance, and whether in damages, for an indemnity
or contribution or for a restitutionary remedy or in any way
whatsoever, the Seller’s liability will be limited to payment of a
sum which will not exceed by way of maximum the amount of
the Purchase Price of the Lot irrespective in any case of the
nature, volume or source of any loss or damage alleged to be
suffered or sum claimed as due, and irrespective of whether
the liability arises from any negligence, other tort, breach of
contract, statutory duty, bailee’s duty, restitutionary claim or
otherwise.
9.6 Nothing set out in paragraphs 9.1 to 9.5 above will be
construed as excluding or restricting (whether directly or
indirectly)any person’s liability or excluding or restricting any
person’s rights or remedies in respect of (i) fraud, or (ii) death
or personal injury caused by the Seller’s negligence (or any
person under the Seller’s control or for whom the Seller is
legally responsible), or (iii) acts or omissions for which the
Seller is liable under the Occupiers Liability Ordinance (Chapter
314 of the Laws of Hong Kong), or (iv) any other liability to
the extent the same may not be excluded or restricted as a
matter of law.
10 MISCELLANEOUS
10.1 You may not assign either the benefit or burden of the
Contract for Sale.
10.2 The Seller’s failure or delay in enforcing or exercising any
power or right under the Contract for Sale will not operate or
be deemed to operate as a waiver of his rights under it except
to the extent of any express waiver given to you in writing.
Any such waiver will not affect the Seller’s ability subsequently
to enforce any right arising under the Contract for Sale.
10.3 If either party to the Contract for Sale is prevented from
performing that party’s respective obligations under the
Contract for Sale by circumstances beyond its reasonable
control or if performance of its obligations would by
reason of such circumstances give rise to a significantly
increased financial cost to it, that party will not, for so long
as such circumstances prevail, be required to perform such
obligations. This paragraph does not apply to the obligations
imposed on you by paragraph 6.
10.4 Any notice or other communication to be given under the
Contract for Sale must be in writing and may be delivered by
hand or sent by first class post or air mail or fax transmission,
if to the Seller, addressed c/o Bonhams at its address or
fax number in the Catalogue (marked for the attention of
the Company Secretary), and if to you to the address or
fax number of the Buyer given in the Bidding Form (unless
notice of any change of address is given in writing). It is the
responsibility of the sender of the notice or communication to
ensure that it is received in a legible form within any applicable
time period.
10.5 If any term or any part of any term of the Contract for Sale
is held to be unenforceable or invalid, such unenforceability
or invalidity will not affect the enforceability and validity of the
remaining terms or the remainder of the relevant term.
10.6 References in the Contract for Sale to Bonhams will,
where appropriate, include reference to Bonhams’ officers,
employees and agents.
10.7 The headings used in the Contract for Sale are for
convenience only and will not affect its interpretation.
10.8 In the Contract for Sale “including” means “including, without
limitation”.
10.9 References to the singular will include reference to the plural
(and vice versa) and reference to any one gender will include
reference to the other genders.
10.10 Reference to a numbered paragraph is to a paragraph of the
Contract for Sale.
10.11 Save as expressly provided in paragraph 10.12 nothing in
the Contract for Sale confers (or purports to confer) on any
person who is not a party to the Contract for Sale any benefit
conferred by, or the right to enforce any term of, the Contract
for Sale.
10.12 Where the Contract for Sale confers an immunity from, and/or
an exclusion or restriction of, the responsibility and/or liability
of the Seller, it will also operate in favour and for the benefit of
Bonhams, Bonhams’ holding company and the subsidiaries
of such holding company and the successors and assignees
of Bonhams and of such companies and of any officer,
employee and agent of Bonhams and such companies, each
of whom will be entitled to avail itself of the same relevant
right at law.
11 GOVERNING LAW AND DISPUTE RESOLUTION
11.1 Law
All transactions to which this agreement applies and all
connected matters will be governed by and construed in
accordance with the laws of Hong Kong. Bonhams has a
disputes procedure in place
11.2 Language
The Contract for Sale is published in both Chinese and
English. If there is any dispute in its interpretation, the English
version will prevail.
APPENDIX 2
BUYER’S AGREEMENT
IMPORTANT: These terms may be changed in advance of the
sale of the Lot to you, by the setting out of different terms in the
Catalogue for the Sale and/or by placing an insert in the Catalogue
and/or by notices at the Sale venue and/or by oral announcements
before and during the Sale at the Sale venue. You should be alert to
this possibility of changes and ask in advance of bidding if there have
been any.
1 THE CONTRACT
1.1 These terms govern the contract between Bonhams
personally and the Buyer, being the person to whom a Lot
has been knocked down by the Auctioneer.
1.2 The Definitions and Glossary contained in Appendix
3 to the Catalogue for the Sale are incorporated into this
agreement and a separate copy can also be provided by us
on request. Where words and phrases which are defined
in the List of Definitions are used in this agreement, they are
printed in italics. Reference is made in this agreement to
information printed in the Notice to Bidders, printed at the
beginning of the Catalogue for the Sale, and where such
information is referred to it is incorporated into this agreement.
1.3 Except as specified in paragraph 4 of the Notice to Bidders
the Contract for Sale of the Lot between you and the Seller
is made on the fall of the Auctioneer’s hammer in respect of
the Lot, when it is knocked down to you and at that moment
a separate contract is also made between you and Bonhams
on the terms in this Buyer’s Agreement.
1.4 We act as agents for the Seller and are not answerable or
personally responsible to you for any breach of contract or
other default by the Seller, unless Bonhams sells the Lot as
principal.
1.5 Our personal obligations to you are governed by this
agreement and we agree, subject to the terms below, to the
following obligations:
1.5.1 we will, until the date and time specified in the Notice
to Bidders or otherwise notified to you, store the Lot in
accordance with paragraph 5;
1.5.2 subject to any power of the Seller or us to refuse to release
the Lot to you, we will release the Lot to you in accordance
with paragraph 4 once you have paid to us, in cleared funds,
everything due to us and the Seller;
1.5.3 we will provide a guarantee in the terms set out in paragraph 9.
1.6 We do not make or give and do not agree to make or give
any contractual promise, undertaking, obligation, guarantee,
warranty, representation of fact in relation to any Description
of the Lot or any Estimate in relation to it, nor of the accuracy
or completeness of any Description or Estimate which may
have been made by us or on our behalf or by or on behalf
of the Seller (whether made orally or in writing, including in
the Catalogue or on Bonhams’ Website, or by conduct, or
otherwise), and whether made before or after this agreement
or prior to or during the Sale. No such Description or Estimate
is incorporated into this agreement between you and us. Any
such Description or Estimate, if made by us or on our behalf,
was (unless Bonhams itself sells the Lot as principal) made as
agent on behalf of the Seller.
2 PERFORMANCE OF THE CONTRACT FOR SALE
You undertake to us personally that you will observe and
comply with all your obligations and undertakings to the Seller
under the Contract for Sale in respect of the Lot.
3 PAYMENT
3.1 Unless agreed in writing between you and us or as otherwise
set out in the Notice to Bidders, you must pay to us by not
later than 4.30pm on the second working day following the
Sale:
3.1.1 The Purchase Price for the Lot;
3.1.2 A Buyer’s Premium in accordance with the rates set out in the
Notice to Bidders on each lot, and
3.1.3 If the Lot is marked [AR], an Additional Premium which is
calculated and payable in accordance with the Notice to
Bidders together with VAT on that sum if applicable so that all
sums due to us are cleared funds by the seventh working day
after the Sale.
3.2 You must also pay us on demand any Expenses payable
pursuant to this agreement.
3.3 All payments to us must be made in the currency in which
the Sale was conducted, using, unless otherwise agreed by
us in writing, one of the methods of payment set out in the
Notice to Bidders. Our invoices will only be addressed to the
registered Bidder unless the Bidder is acting as an agent for a
named principal and we have approved that arrangement, in
which case we will address the invoice to the principal.
3.4 Unless otherwise stated in this agreement all sums payable to
us will be subject to the Tax at the appropriate rate and such
Tax will be payable by you on all such sums.
3.5 We may deduct and retain for our own benefit from
the monies paid by you to us the Buyer’s Premium, the
Commission payable by the Seller in respect of the Lot, any
Expenses and Tax and any interest earned and/or incurred
until payment to the Seller.
3.6 Time will be of the essence in relation to any payment payable
to us. If you do not pay the Purchase Price, or any other sum
due to us in accordance with this paragraph 3, we will have
the rights set out in paragraph 7 below.
3.7 Where a number of Lots have been knocked down to you,
