against the Buyer for his breach of contract, and demand the Buyer
to pay the hammer price, commission and other expenses as well as
compensation for all the losses for his breach of contract (including, but
not limited to fees for lawyer’s first, second instance and review as well
as prosecution procedure. Every procedure shall be no more than 7%
of the value of the subject matter of the action or the subject matter of
execution to be applied for, and guarantee of attachment).
(2) Do not transfer any one of the articles at the Auctioneer to the Buyer.
(3) Denounce the defaulter by name and his default practice through news
media.
(4) Sell the article again by auction or by other means. If the Auctioneer puts
the concerned article in auction again or sells the article, the Buyer shall
pay the commission which himself and the Seller should have paid in the
previous auction. If the article is auctioned/sold at the price lower than
the original one, the Buyer shall pay the difference to the Auctioneer. If
the article is auctioned/sold at the price higher than the original one, the
surplus shall go to the Auctioneer or the Seller, which does not exempt
the original Buyer from bearing the liability for any breach of contract.
(5) From the 8th day after the sale date, the Auctioneer shall charge the Buyer
interest at a rate of 0.05% per day and storage fee at a rate of 0.03% per
day on the due and unpaid amount until such a payment is made fully,
unless otherwise agreed by the Buyer and the Auctioneer. If the Buyer stalls
the payment, the interest and storage fee accrued due to the delay as well as
other losses caused to the Auctioneer accordingly shall be paid as well as the
purchase price and other amounts the Buyer shall pay to the Auctioneer
(6) The deposit shall not be returned to the Buyer. And the Buyer shall pay
30% of the unpaid amount to the Auctioneer as a penalty.
(7) In the event that the Buyer fails to pay any one of the articles at the
agreed time according to the Conditions of Business after the successful
bidding of several articles under the same bidding paddle, the Auctioneer
shall not return all the deposits to the Buyer. The Buyer has no right to
take away any one of the articles before he pays off in full.
(8) Within 7 days of the successful bidding, if the Buyer fails to pay the due
amount to the Auctioneer and the Seller proposes to retrieve the article,
the contract between the Auctioneer and the Buyer shall be deemed
as terminated upon the approval of the Auctioneer. The Auctioneer,
however, still has the right to require the Buyer to take the liability.
(9) After the successful bidding, if the Buyer fails to make due payment, the
Auctioneer shall have the right to entrust a third party to collect all or
part of the default payment from the Buyer.
9. Statement of Guarantee
According to the Auction Law of the People’s Republic of China, the
Auctioneer declares that the introduction and comments, including photos,
pictures, slides and news reports about any auction article made by any one
of the agents are for reference only, and can never be interpreted as a sort
of guarantee. The Auctioneer undertakes no guarantee for the authenticity
and quality of any article. So the Buyer (including the trustee) shall examine
the auction article in person and be legally responsible for his bidding.
Part II Main Stipulations for the Seller
1. The Seller and guarantee
(1) The Seller shall be the auction truster. The Auctioneer shall take
the truster as the legal owner of a certain property in the absence of
particular statements; if the article is a co-owned property, the Auctioneer
shall take the truster as the representative of the co-owners and deem
that the truster has got the permission in the absence of the truster’s
statements.
(2) The Seller shall show his Identification Card or other valid identity
certificates, together with relevant certificate about the potential auction
article when he intends to trust the Auctioneer to sell his article by
auction. The Seller should also state the origin and content of the
article to the Auctioneer and sign a “Consignment Agreement” with the
Auctioneer.
(3) The Seller shall have the “right of disposal” or ownership of the article
trusted to the Auctioneer for the sale, and he shall be legally responsible
for all disputes caused by exhibition, propaganda, publication, auction
and so on, hence the Seller shall compensate the Auctioneer for any
economic loss and defamation arising from the disputes concerned.
(4) The Seller shall provide the Auctioneer with all kinds of information he
knows or ought to know, regarding the origin and defects of the potential
auction article, so as to facilitate the Auctioneer to check the article.
(5) The Seller shall not bid his trusted auction article nor trust or employ
others to bid for the trusted article.
2. As for the article trusted by the Seller, the Auctioneer shall be fully entitled
to handle the following matters:
(1) To decide whether a certain article is fit for auction, and the time, place,
terms and by which means the auction will be held.
(2) To introduce and comment on any auction article in the catalogue and
through news media.
(3) To terminate the agreement (withdraw an article) any time before the
auction day, or to adjust its base price after negotiating with the Seller.
3. The base price
(1) All auction articles shall have their respective base price. The Seller shall
have the right to reach a written agreement with the Auctioneer about
the base price. If the Seller wishes to change the base price agreed by
both parties, he shall get the approval from the Auctioneer first.
(2) The Auctioneer shall not sell an auction article at a price that is lower
than the base price. Under the condition that the Auctioneer guarantees
that the Seller’s actual proceeds is no less than the amount he shall get
when the article is sold at the base price, the Auctioneer shall auction the
article at a price that is lower than the base price.
4. Auction on consignment
It refers to the way in which the Seller negotiates with the Auctioneer
before signing a Consignment Agreement according to which the Seller shall
get the auction proceeds after paying the Auctioneer a certain proportion of
auction fee and commission on the basis of the hammer price.
5. Commission and other charges
(1) Except otherwise regulated, commission accounts for 10% of the
hammer price, while the Seller will not be charged in case the trusted
article goes unsold.
(2) Premium accounts for 1% of the hammer price; printing and
photography fees can be referred to in the Auctioneer’s charging list.
(3) If the Seller refuses to pay the above-mentioned commission and other
charges, the Auctioneer shall deduct the amount from the auction
proceeds after the sale of the article.
(4) The Seller shall acknowledge all kinds of reasonable expenses the
Auctioneer collects from the Buyer according to the agreements.
6. Insurance
(1) Except otherwise hinted by the Seller, the Auctioneer has the right to buy
insurance for the article or keep the article from the day when the Seller
and the Auctioneer sign a Consignment Agreement and the Seller trusts
the article to the Auctioneer to the day when the Buyer completes full
payments of his bidding or within 35 days after the auction date.
(2) The Seller shall pay 1% of the hammer price as premium. If the
article fails to be auctioned, the Seller shall pay 1% of the base price as
premium.
(3) If the Auctioneer is demanded by the Seller in written form not to effect
the insurance of his auction article, then the Seller shall be responsible
for all the accidents while the Auctioneer shall not be responsible for
them. And the Seller shall be liable if there are economic losses and
expenses caused by the accidents.
(4) The Auctioneer shall not be responsible for the damages caused by insects
and/or change of weather or other irresistible causes to the auction
article. If there are other reasons accounting for the damage done to
the article and indemnity is needed, then the matter shall be handled in
accordance with relevant Chinese insurance laws and regulations. Under
the condition that the insurance company agrees to pay the claimed
damages, the Seller shall get the rest of the indemnity after deducting the
fees (exclusive of commission) he shall pay to the Auctioneer.
7. Payment of proceeds of the auction
(1) If the Buyer has paid off the price in full to the Auctioneer and there is
no dispute whatsoever, the Seller shall get the rest of the sale proceeds
after deducting the fees as regulated in the Consignment Agreement and
Conditions of Business starting from the 35th day after the sale date,.
(2) If the Buyer pays the due amount after (or more than) 35 days of the
auction date to the Auctioneer, the Auctioneer shall pay the proceeds to
the Seller as regulated within 7 working days after receiving the Buyer’s
payment in full.
(3) RMB shall be the currency the Auctioneer shall pay the Seller after the
auction, except otherwise agreed upon by both parties.
(4) According to relevant laws and regulations of the People’s Republic
of China, the Auctioneer should withhold the tax to the competent
authority.
8. Charges for the withdrawal of auction articles
The Seller may withdraw the article before the auction date subject
to the Auctioneer’s consent with a written notice stating the reasons. In the
case the catalogue or any other advertisements of the article have begun
to be printed before the Seller’s withdrawal, the Seller shall pay an amount
NOTICE TO THE BIDDER
1. The place where obligations of a contract are fulfilled should be the place
where the Auctioneer is located at.
2. The Conditions of Business, which is published on the catalogues, should
be read carefully by the Bidder and complied with strictly.
3. The Bidder shall present his own valid Identification Card, passport
or other relevant documents to undergo registration procedure. For a
paddle registration, the Bidder shall pay a deposit of RMB 200,000.
To bid in sales of Chinese paintings & calligraphy (including Important
Manuscripts and Photographs), Modern and Contemporary Oil
Paintings, Following Lu Xun and China's New Woodcut Movement:
Rong Ge Memorial Sale for His Woodcut Career, the Bidder shall pay a
deposit of RMB 500,000. The Bidder who bids for lots at a total purchase
price of RMB 10,000,000 (commission included) or more shall pay an
additional deposit of RMB 500,000.
4. The Bidder can authorize his agent to bid if the Bidder is unable to be
present at the auction hall and place a bidding. Before the auction date,
the trustee shall present an authorization letter which is recognized by
the Auctioneer to prove him as the agent of the Bidder, otherwise each
Bidder shall be deemed as the Bidder himself.
5. Besides cash and cheque, payments can be remitted directly to the banks
where the Auctioneer has accounts.
Deposit Bank
BENEFICIARY NAME: XILINGYINSHE AUCTION Co., Ltd.
BENEFICIARY BANK: INDUSTRIAL AND COMMERCIAL BANK
OF CHINA, HANGZHOU CHENGZHAN
DISTRICT BRANCH
A/C NO: 1202027709814004367 SWIFT BIC: ICBKCNBJZJP
equal to 30% of the article’s base price and other expenses. In the case the
catalogue or any other advertisements of the article have not begun to be
printed after the Seller’s withdrawal, the Seller shall pay an amount equal
to 20% of the article’s base price and other expenses. Any dispute or claim
arising out of the Seller’s withdrawal shall be borne by the Seller.
9. Unsold auction articles or contract rescission between the Buyer and the
Auctioneer
If an article fails to be auctioned or the contract is rescinded between
the Buyer and the Auctioneer due to any other reason, the Seller shall take
the article back at his own expense within 60 days after the auction date or
the contract rescission. After the expiry of such a period, the Auctioneer
shall have the right to auction the article publicly. The Auctioneer shall also
be entitled to demand the Seller to pay all amounts due after the article is
auctioned. And the Auctioneer shall charge the Seller storage fees at a rate
of 0.03% per day on the base price after the auction date or the contract
rescission. The Seller shall be responsible to all the risks and accidents
thenceforward.
Part III Other Rights and Duties of the Auctioneer
1. The Auctioneer shall provide services for both the Seller and the Buyer,
but it shall not be responsible for any Buyer or Seller’s breach of contract.
2. The Auctioneer shall be entitled to refuse any bid which comes after the
hammer price, raise bidding price, withdraw any auction article and sell
the article in another auction if there are any disputes.
3. The Auctioneer shall have the right to hold exhibitions, auctions, and
make announcements, catalogues and other forms of publications to
introduce the auction article.
4. The Auctioneer shall ask the Bidder to notice the defects in an auction
article, examine the article and decide his own bidding.
5. The Auctioneer shall have the right to determine, together with the Seller,
the base price, and to determine the name of currency in auction, means
of auction and bidding increments.
6. The Auctioneer shall keep it confidential concerning the Buyer and the
Seller in accordance with the laws of the People’s Republic of China
and the business rules of the Auctioneer; the Auctioneer shall protect
the rights and interests of the Buyer, the Seller and the Auctioneer from
infringement.
7. According to the agreement between the Auctioneer and the Seller,
the Seller shall be the owner of the auction article and shall be legally
responsible. The Auctioneer shall not accept or hear any cases regarding
different opinions from other persons about the ownership of the auction
articles the Auctioneer is going to sell. If the Auctioneer receives an
announcement or decision made in accordance with law from the judicial
departments before the auction, the Auctioneer shall have the right to
stop the auction.
Part IV Definitions of the Terms Used in This Document and Other
Terms
The definitions of the terms used in this document and catalogue are
as follows:
1. “The Company”, “The Auctioneer” refer to the Xiling Yinshe Auction
Co., Ltd.
2. “Different kinds of expenses” refers to expenses collected by the
Auctioneer for insurance, catalogue and so on.
3. “Imitation” refers to an auction article different from the caption
described in catalogue, including its author, origin, date, period and
background.
4. “Auction article” refers to an article or property rights consigned by the
Seller to the Auctioneer for sale in the auction.
5. “Base price” refers to the lowest hammer price that should be reached in
the auction.
6. “Estimated price” refers to the estimated price of each article shown in
the Auctioneer’s catalogue. The price is subject to alteration.
7. “Hammer price” refers to the price of a certain auction article upon
which the Auctioneer’s hammer falls.
8. “Purchase price” refers to the total amount of hammer price and
commission that should be paid by the Buyer.
9. “Commission” refers to the expenses collected on a certain percentage by
the Auctioneer from both the Buyer and the Seller.
10. “Auction proceeds” refers to the amount paid by the Auctioneer to
the Seller after deducting commission calculated by certain rate, other
expenses and the amount that the Seller should pay to the Auctioneer on
the basis of the hammer price.
11. “Sale/Auction date” means the date on which the Auctioneer confirms
the sale of any article in the auction by striking his hammer or in any
other public manner.
12. “Notice” refers to a notice in written form. The Auctioneer sends out
notice and letters to the address provided by the Consigner, Bidder and
Buyer. Once the notice/letter is sent out, it is deemed as delivered to
whom is concerned.
13. “Seal” refers to a seal in an auction article..The seal’s caption in the
Auctioneer’s Catalogue is for the Buyer’s reference only
14. “Color” in the catalogue means an auction article (a piece of Chinese
calligraphy or painting) is colored.
15. “Defect” refers to authenticity and some tiny flaws in the artwork. The
Auctioneer believes all works of art are subject to defects or flaws caused
by nature, artists of improper preservation. So the Auctioneer shall ask
the Bidder to examine the auction article if he can find any obvious
or hidden defects. There is a traditional Chinese saying: “The defects
cannot obscure the virtues”. In a word, the Bidder shall determine
before bidding whether a certain defect counts or not.
16. The place where obligations of a contract are fulfilled refers to the place
where the Auctioneer is located at.
17. The jurisdiction shall be for the court whose jurisdiction area includes
the domicile of the Auctioneer. The court shall exercise jurisdiction
over disputes in the performance of Consignment Agreement and
the contract between the Auctioneer, the Bidder, the Seller and other
interested parties.
18. The contact or identification information registered by the Seller, Bidder
or Buyer at the Auctioneer is deemed as the information based on which
the Auctioneer makes contact with. Notice or other legal documents sent
by the Auctioneer or agent and judicial authority using such information
to the Seller, Bidder and Buyer is deemed to have been served. For
any change in such information, a written notice to the Auctioneer is
necessary, otherwise the change is invalid.
*If there are any differences in the comprehension of the English version of
the document, the Chinese version shall prevail.
*The right to interpret the Conditions of Business is reserved by the
Auctioneer.
