Payment and Delivery: 1.31 An invoice for the full Purchase Price will be sent to the Buyer to the address provided by the Buyer. Property in the Lot will only pass to the Buyer upon full payment of the Purchase Price in cash of in cleared funds. Until that time, the Buyer acquires no title or ownership in the Lot. KLAS and the Seller are not obliged to release the Lot to the Buyer until full settlement of the Purchase Price.
1.32 Upon payment of the full Purchase Price, the Buyer must collect the purchased Lot no later than seven (7) calendar days after the date of the Sale unless otherwise agreed with KLAS, or the Buyer may incur storage charges and other Expenses incurred by KLAS.
1.33 Sold Lots should be collected from KLAS at its principal office which is located at the address stated below. Where delivery to the Buyer or his nominee is required, the packing, handling and shipping of lots is entirely at the Buyer's risk and expense (which shall be paid in full before the Lot is shipped out) and KLAS will not, in any circumstances, be responsible for the acts or omissions of the packers or shippers.
1.34 The export of any Lot from Malaysia or import into any other country may require one or more export or import licenses or permits. It is the Buyer's responsibility to obtain any relevant export or import license. The denial of any export or import license will not justify the rescission or cancellation of the Sale by the Buyer or any delay by the Buyer in making payment of the full Purchase Price when due.
1.35 If the Buyer without the prior agreement of KLAS fails to make payment of the full Purchase Price, KLAS will be entitled in its absolute discretion and without prejudice to any other rights which KLAS and the Seller may have, to exercise one or more of the following rights or remedies:
(a) to forthwith terminate and annul the Contract of Sale;
(b) to charge the Buyer, the Seller's and KLAS's Expenses;
(c) to charge interest at a rate not exceeding 6% (six per cent) per annum on the full amount due to the extent that it remains unpaid for more than four (4) weeks after the date of the auction;
(d) to forfeit the Buyer's earnest deposit;
(e) to commence proceedings for its recovery together with interest and Expenses to the fullest extent permitted under applicable law;
(f) to arrange and carry out a resale of the Lot by public auction or private sale in mitigation of the debt owed by the Buyer to KLAS;
(g) set-off any amounts owed by KLAS to the Buyer against any amounts owing by the Buyer to KLAS or any KLAS's affiliated company, whether as the result of any proceeds or sale or otherwise;
(h) exercise a lien over any of the Buyer's property which is in KLAS's possession or in possession;
(i) to insure, remove and store the Lot either at KLAS's premises or elsewhere at the Buyer's sole risk and expense; and/or
(j) to take such other action as KLAS deems necessary or appropriate.
1.36 Where KLAS decides to resell any Lot pursuant to paragraph 1.33, the Buyer and the Seller hereby consent to and authorise KLAS to arrange and carry out the resale and agree that the level of the Reserve and the Estimates relevant to such resale will be at KLAS's sole discretion. The net sale proceeds (after Expenses) will be applied in reduction of the Buyer's debt. If a resale should result in a lower price than the original hammer price obtained, KLAS and the Seller will be entitled to claim any shortfall in the Purchase price from the Buyer together with any costs incurred. If the resale results in a higher price than the original Hammer Price obtained, the surplus will be paid to the Seller. In such case, the Buyer waives any claim which the Buyer may have to the Lot and agrees that any resale price will be deemed commercially reasonable.
CONTRACT OF SALE BETWEEN SELLER & BUYER: General
2.1 This section sets out the terms of the Contract of Sale made between a Seller and a Buyer. It incorporates other terms relevant to the Sale which have been set out in other parts of the Auction Conditions. The Seller sells the Lot as the principal under the Contract of Sale, which is a contract made between the Seller and the Buyer through KLAS which acts in the sole capacity as the Seller's agent and not as an additional principal.
2.2 The Contract of Sale is a conditional sale where the transfer of property and ownership in the purchased Lot is subject to full payment of the Purchase Price.
Seller's Undertakings and Representations
2.2 The Seller warrants to the Buyer that at all relevant times (including but not limited to the time of the consignment of the Lot to KLAS and at the time of the Sale) that:
(a) the Seller is the true owner of the Lot, or is properly authorised to sell the Lot by the true owner;
(b) the Seller is able to and shall, in accordance with the Auction Conditions, transfer possession to the Buyer a good and marketable title to the Lot free from any third party rights or claims or potential claims including, without limitation, any claims which may be made by governments or governmental agencies;
(c) the Seller has provided KLAS with all information in its possession or knowledge concerning the provenance of the Lot and has notified KLAS in writing of any concerns expressed by third parties in relation to the ownership, condition, authenticity, attribution, or export or import of the Lot;
(d) the Seller is unaware of any matter or allegation which would render the Contractual Description given by KLAS in relation to the Lot inaccurate or misleading;
(e) where the Lot has been moved to Malaysia from another country, the Lot has been lawfully imported into Malaysia, the Lot has been lawfully and permanently exported as required by the laws of any country in which it was located, and required declarations upon the export and import of the Lot have been properly made and any duties and taxes on the export and import of the Lot have been paid;
(f) there are no restrictions, copyright or otherwise, relating to the Lot (other than those imposed by law) and no restrictions on KLAS's rights to reproduce photographs or other images of the Lot.
2.3 The Seller does not make or give and does not agree to make or give any contractual promise, undertaking, obligation, guarantee, warranty, or representation of fact, or undertake any duty of care, in relation to any Description of the Lot or any Estimate in relation to it, nor of its accuracy or completeness whether made by KLAS on behalf of the Seller or by the Seller itself.
2.4 The Seller does not make and does not agree to make any contractual promise, undertaking, obligation, guarantee, warranty, or representation of fact in relation to the satisfactory or merchantable quality of the Lot or its fitness for any purpose.
2.5 Where relevant to the Contract of Sale, the provisions in the Notice to Bidders set out in Section 1 above are hereby repeated and deemed agreed by the Seller and the Buyer.
2.6 The Seller agrees that KLAS has full authority to prescribe the terms of the Auction Conditions and conclude the Contract of Sale on its behalf.
Withdrawal of Lots
2.7 The Seller may at any time before a Sale, subject to the prior written consent of KLAS, withdraw a Lot from the Sale, at any time before the Sale of that Lot.
2.8 KLAS is authorised to withdraw a Lot from sale without any liability if:
(a) KLAS reasonably believes that there is any doubt as to the authenticity or attribution of the Lot; or
(b) KLAS reasonable believes that any of the Seller's representations or warranties are inaccurate in a material respect; or
(c) the Seller breached any provisions of these Auction Conditions in any material respect; or
(d) KLAS believes it would be improper to include that Lot in the Sale.
Risk, Property, Delivery and Payment
2.9 The provisions of paragraphs 1.27 to 1.36 of Section 1 above will apply to the Contract of Sale.
2.10 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.
2.11 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 which are expressly imposed.
2.12 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 Registered Post or fax transmission, if to the Seller, addressed c/o KLAS at its address or fax number stated below, and if to the Buyer to the address or fax number of the Buyer given in the Bid Registration 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.
PROVISIONS APPLICABLE TO ALL PARTIES
3.1 The Auction Conditions and any amendment to them will be governed by and interpreted and construed in accordance with the laws of Malaysia.
3.2 KLAS and all Bidders, Buyers and Sellers (including prospective Bidders) agree that all disputes and differences between the parties must be referred to arbitration by a single arbitrator appointed by the President of the Bar Council, Malaysia and to be conducted in accordance with the Arbitration Rules of the Kuala Lumpur Regional Centre for Arbitration.
3.3 KLAS shall have the absolute right (on a non-exclusive basis) to photographs, videos and otherwise reproduced images of Lots consigned to KLAS for sale. The copyright of all images, illustrations, written materials and published contents produced by or on behalf of KLAS relating to each Lot shall remain at all times the property of KLAS and shall not be used by any person without the prior written consent of KLAS. KLAS shall have the right to use all such materials in whatever manner it deems fit it in the normal course of KLAS's business and the business of its affiliated companies.
3.4 Any letter, notice, request, demand or certificate:
(a) if delivered personally shall be deemed to be received at the time of receipt by the recipient;
(b) if delivered by prepaid registered post, first class post or express or air mail or other fast postal service shall be deemed to have been duly served within seven (7) days of dispatch (notwithstanding that it is returned through the post undelivered); or
(c) if sent by telex or facsimile transmission or other electronic media shall be deemed to have been given at the time of transmission, and if sent by telegram or cable shall be deemed to have been given 24 hours after dispatch.
Any notice sent to KLAS shall be sent to:
KL Lifestyle Art Space
c/o Mediate Communications Sdn Bhd
31, Jalan Utara
52100 Petaling Jaya, Selangor.
3.5 If any part of these Auction Conditions is found by any court to be invalid, illegal or unenforceable, that part shall be discounted and the rest of the conditions shall continue to be valid to the fullest extent permitted by law.
3.6 The headings and introduction to the Auction Conditions do not form part of the Auction Conditions, but are for convenience only.
3.7 No act, failure to act or partial act by a party shall be deemed a waiver of any of its rights hereunder.
3.8 The singular includes the plural and vice versa where the context requires. Where the masculine one gender is used, this includes all other genders as the context requires.
3.9 The Auction Conditions and the agreements on which they are based, may not be assignable by the Buyer or the Seller without the prior written agreement of KLAS. However, the Auction Conditions shall be binding on any of their successors, assigns, trustees, executors, administrators and representatives.
3.10 If any term or any part of any term of the Auction Conditions 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.
3.11 References in the Auction Conditions to KLAS will, where appropriate, include reference to KLAS' officers, employees and agents.
3.12 Nothing in the Auction Conditions 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 Auction Conditions.
Buyer's Premium: A payment calculated as the amount equal to 12% of the Hammer Price and payable by a Buyer to KLAS together with all applicable taxes as may be set and revised by the Malaysian government from time to time
Goods and Services Tax (GST): All Buyers will be subject to the 6% GST payable on the Buyer's Premium of the winning bid.
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