Watch + Act
GENERAL CONDITIONS OF BUSINESS
(16 January, 2019)
These Conditions apply to all sales conducted and services provided by the Company and any goods which are held by the Company for valuation, storage or any other purposes.
1. Definitions
In these Conditions the following words and expressions shall (unless the context otherwise requires) have the following meanings:
'Agreed Reserve' means the confidential minimum Sale Price at which a Lot may be sold as agreed in writing by Seller and the Company on the Consignment Agreement Form or otherwise.
'Auctioneer' means the representative of the Company conducting the auction.
'Buyer' means the person to whom a Lot is knocked down by the Auctioneer or a person who purchases a Lot sold by the Company on behalf of a Seller by private treaty or tender or any other sales process.
'Catalogue' includes any advertisement, brochure, price list and other publication produced by the Company.
'Charges' means charges and expenses paid or payable by the Company in respect of a Lot as set out in these Conditions, including legal expenses, packing or shipping costs, taxes, levies, removal and storage charges and interest, plus any GST payable. The relevant charges and expenses will be passed on to the Seller and/or Buyer at the price paid or payable by the Company plus 10%, or otherwise as is set out in writing or agreed by the Company and Seller and/or Buyer.
'Claims' means all sums of money, debts, dues, suits, actions, causes of action, proceedings, arbitrations, claims, accounts, liabilities, losses, demands, costs, expenses, notices or any other type of claim howsoever arising out of these Conditions or anything relating to the subject matter of these Conditions.
'the Company' means Time+Tide Watches Pty Ltd unless written notification to the contrary is provided.
'Consignment Agreement Form' means the form signed, and a copy of which is received, by the Seller containing the terms on which the Seller submits a Lot or Lots for sale by the Company or the form used to provide a record of an item or items taken into custody for evaluation, research or advice.
'Dollars' or '$' means Unites States currency.
'Estimated Selling Range' means the estimated Sale Price range of a Lot.
'Expenses' includes all fees, charges and expenses listed on the front page of the Consignment Agreement Form and/or correspondence annexed to it and/or as agreed in writing between the Company and the Seller.
'Forgery' means an imitation intended by the maker or any other person to deceive as to authorship, origin, date, age, period, provenance, culture, source or composition, which at the date of the Sale had a value materially less than it would have had if the Lot had not been such an imitation, and which is not stated to be such an imitation in the description of the Lot given in the Catalogue. A Lot will not be a Forgery by reason of any damage to and/or restoration and/or modification work (including repairing or over painting) having been carried out on the Lot, where that damage, restoration or modification work (as the case may be) does not substantially affect the identity of the Lot as one conforming to the description of the Lot given.
'GST' means a tax payable under the New Tax System (Goods and Services Tax) Act 1999 as amended.
'Hammer Price' means the price in Dollars (including GST, if any) at which a Lot is knocked down by the Auctioneer to the Buyer unless it is auctioned again ('Second Auction') as a result of a dispute in which event it means the price at which the Lot is knocked down by the Auctioneer to the Buyer at the Second Auction.
'Indemnity Fee' means the mandatory fee paid by the Seller on all sold Lots with the exception of V Lots and referred to in the Consignment Agreement Form, being 1.5% of the Hammer Price, plus GST.
'Lot' means any item or items consigned by or on behalf of the Seller to the Company with a view to its sale at auction or by private treaty and includes a V Lot.
'Lot Number' means the number allocated by the Company to a Lot prior to auction.
'Offer Fee' means the flat fee paid by the Seller regardless of whether a Lot sells and referred to in the Consignment Agreement Form.
'Premium' (unless otherwise stated in a relevant auction Catalogue) means 22% of the Hammer Price paid by the Buyer, plus GST. For V Lots the Premium is 15% of the Hammer Price paid by the Buyer, plus GST.
'Purchase Price' means the aggregate of the Sale Price, the Premium, any GST payable on the Sale Price and/or the Premium and the Charges.
'Sale' means any private treaty or auction sale at which a Lot is offered for sale.
'Sale Price' means the Hammer Price if sold at auction or the price agreed by the Buyer at private treaty (including GST, if any).
'Sale Proceeds' means the net amount payable to the Seller, being the Sale Price less the Seller's Commission, Expenses and any other amount payable to the Company by the Seller as agreed between the Company and the Seller (in whatever capacity and howsoever arising, whether in relation to these Conditions or otherwise).
'Second Auction' has the meaning set out in the definition of Hammer Price.
'Seller' means in relation to any Lot the person or other entity named as the Seller on the front page of the Consignment Agreement Form who offers the Lot for sale.
'Seller's Commission' means the amount paid by the Seller to the Company on the sale of a Lot that is calculated on the Sale Price at the rate agreed in writing by the Seller and the Company on the Consignment Agreement Form or otherwise, plus GST.
2. The Company as agent
2.1 The Company is the agent of the Seller in relation to the sale of a Lot (except where it is expressly stated in writing to be selling as principal) and is not responsible for any default by the Seller or the Buyer.
2.2 The Seller instructs and authorises the Company to:
(a) sell the Lot as the Seller's agent in accordance with these Conditions;
(b) receive and hold all Sale Proceeds;
(c) sign on the Seller's behalf any documentation necessary to transfer ownership of the Lot to the Buyer;
3. The Company's discretion
3.1 The Auctioneer has the right at his or her sole discretion to refuse any bid, to divide any Lot, to combine two or more Lots, to withdraw any Lot from Sale and, if there is a dispute or the Auctioneer or the Company is of the opinion that there has been a misunderstanding or mistake regarding a Sale or a Lot the subject of a Sale, to rescind the Sale and put any Lot up for a Second Auction.
3.2 If a Sale is rescinded, the Company may:
(a) put the Lot up for a Second Auction at a subsequent Sale; or
(b) offer the Lot for sale by private treaty; or
(c) withdraw the Lot from sale.
3.3 The Company may refuse entry to its premises or to any private premises at which it is conducting an auction by any person or persons at its absolute discretion.
4. Risk of personal loss or injury
The Company shall be under no liability for any injury, damage or loss sustained by any person while on the Company's premises or any Sale premises or where a Lot, or a part of a Lot, may be on view from time to time, except where the Company (and its employees or agents) has not acted with due care and skill.
5. The Company's Estimated Selling Range and descriptions
5.1 (a) Any Estimated Selling Range given by the Company is a statement of opinion and should not be relied upon as a representation as to the Sale Price a Lot may achieve at a Sale.
(b) The Company reserves the right to revise the Estimated Selling Range at any time with the agreement of the Seller.
5.2 The Seller acknowledges that the Company is entitled to rely on the accuracy of a description of a Lot provided by or on behalf of the Seller.
5.3 The Company shall not be liable for any error, misstatement or omission in the description of a Lot in any Catalogue, unless the Company (and its employees or agents) has engaged in misleading or deceptive conduct.
6. Warranties of Seller
6.1 The Seller warrants to the Company and the Buyer that:
(a) the Seller owns the Lot or the Seller is authorised to sell the Lot by the owner;
(b) the Lot is free from all liens, charges encumbrances (including registration on the Personal Property Security Register) and third party claims including a claim by a spouse;
(c) the Seller has complied with all requirements, legal or otherwise, in relation to any export or import of the Lot and has notified the Company in writing of any failure by third parties to comply with such requirements in the past;
(d) the Lot and any written provenance given by the Seller to the Company are authentic;
(e) the Seller has notified the Company in writing of:
(i) any material alterations to the Lot of which the Seller is aware;
(ii) any concerns expressed by third parties in relation to the authenticity, provenance, origin, age, condition or quality of the Lot;
(iii) all information in the Seller's possession as to the provenance and identification of the Lot including, in respect of a V Lot, whether that V Lot complies with the provisions of any road traffic or maritime Acts and Regulations,
and that information is correct; and
(f) the Lot is fit for its purpose and safe if used for the purpose for which it was designed and free from any defect not obvious on external inspection.
6.2 The Seller acknowledges that the Company relies on any information provided by the Seller and the Seller agrees to indemnify and keep indemnified the Company against all Claims arising out of or in connection with this information.
6.3 The Seller agrees to indemnify and keep indemnified the Company and or the Buyer against all Claims arising from the Seller's actual or alleged breach of any warranty in these Conditions.
7. Commission and Expenses
7.1 The Seller shall not pay any fees or commissions to Time+Tide Watches in relation to the sale of this auction.
7.2 Time+Tide Watches may deduct expenses incurred such as freight, foreign exchange and other costs incurred in selling the watches before donating the balance of funds raised to the various charities nominated.
7.3 The buyers will pay any respective taxes or import duties involved with their purchase.
8. Reserves
8.1 All Lots will be sold without reserve.
9. Risk
9.1 The Company will not be liable for any Claims relating to or caused by any Lot or by the Seller, except where the Company (and its employees or agents) has not acted with due care and skill, and the Seller indemnifies the Company against all Claims relating to or caused by any Lot, except where the Company (and its employees or agents) has not acted with due care and skill.
9.2 A purchased Lot shall be at the Buyer's risk in all respects from the fall of the Auctioneer's hammer whether or not payment has been made and neither the Company nor the Seller shall thereafter be liable for, and the Buyer indemnifies the Company against, any loss or damage of any kind, except where the Company (and its employees or agents) has not acted with due care and skill.
9.3 The Company advises all Buyers to arrange for their own insurance cover for purchased Lots effective from the fall of the Auctioneer's hammer to protect their interests as the Company cannot warrant that the Seller has insured its interests in the Lots or that the Company's insurance cover will extend to all risks.
9.4 Where the Company has exercised due care and skill, the Company:
(a) does not accept responsibility for Lots damaged by insect infestation or by changes in atmospheric conditions; and
9.5 The Company is not responsible for any items lost in transit whilst shipping goods.
9.6 Funds will not be donated to charities until buyers have confirmation has been received that watches have been received by buyers.
10. Payment to Funds to Charities
10.1 The Company is only liable to the make donations to respective charities for payment of the Sale Proceeds (less selling expenses incurred) if the Purchase Price has been received in cleared funds by the Company and confirmation has that watches have been received by buyers.
10.2 If the full Purchase Price has been received in cleared funds by the Company within 21 days of the date of the Sale, the Company shall pay the Sale Proceeds to the respective charitities not later than 35 days after the date of the Sale.
10.4 If the Buyer fails to pay the Purchase Price within 21 days after the date of the Sale then the Company will give notice of this to the Seller. If the Seller does not give written instructions to the Company in response to this notice within 7 days then the Company may do any of the following for and on behalf of the Seller (who will give the Company any assistance it may require):
(a) agree terms for the payment of the Purchase Price with the Buyer;
(b) remove, store and further insure the Lot sold;
(c) settle any Claim by or against the Buyer;
(d) take such steps as the Company shall at its absolute discretion consider necessary to collect the monies due from the Buyer;
(e) rescind the Sale and refund any monies to the Buyer;
(f) offer the Lot for resale by private treaty or auction on the same terms as appear in the Consignment Agreement Form;
(g) appoint a solicitor or other agent to do any of the above.
10.5 Any monies recovered by and paid to the Company by the Buyer shall be applied in the following order (in each case together with interest) to the payment of:
(a) any legal or other costs incurred by the Company;
(b) the Expenses including freight, currency currency conversion and other costs
any balance remaining shall be paid by the Company to the respective charities.
11. Withdrawal of Watches
11.1 A Seller may only withdraw a Lot from sale by written notice signed by the Seller.
11.2 If a Seller purports to impose an Agreed Reserve at any time without the consent of the Company, the Seller shall be deemed to have withdrawn the Lot from sale.
11.8 If the Company incurs any legal and other costs investigating or defending any Claims concerning the ownership of a Lot, the accuracy of the description of the Lot contained in the Catalogue or the warranties of the Seller, the Seller shall indemnify the Company for all such costs.
11.9 The Company is authorised by the Seller to apply any money held by the Company on behalf of the Seller to the payment or reimbursement of any expenses incurred.
11.10 The Company may claim a lien on any goods held by the Company for the Seller until all money payable to the Company by the Seller has been paid and, if it is not paid within 28 days, may exercise a power of sale over those goods.
12. Photography and illustration
12.1 The Company shall have the right to photograph and make illustrations of any Lot and to use at its discretion in the normal course of business such photographs and illustrations, and any photograph or illustration of a Lot owned and supplied by the Seller, whether or not in conjunction with the Sale.
15. The Buyer
15.1 The Auctioneer may knock down a Lot to the person who, at his or her absolute discretion, he or she believes is the highest bidder acceptable to the Company, subject to any Agreed Reserve. Any dispute may be determined by the Auctioneer at his or her absolute discretion and the decision of the Auctioneer shall be final.
15.2 Every bidder shall be deemed to act as principal unless prior to the commencement of the Sale there is a written acceptance by the Company that the bidder is acting on behalf of a third party and that the bidder is not personally liable.
15.3 No person shall be entitled to bid at a Sale without first having completed and delivered to the Company a bidder registration form acceptable to the Company and the registration form will include an acknowledgement by a bidder that they are bound by these Conditions.
The Company is the agent of the Seller, not the Buyer, and it is not intended that there be any legal relationship between the Company and the Buyer.
15.4 The Company has no obligation to accept any pre-registration application. The Company's decision on this regard shall be final.
16. Buyers to satisfy themselves
16.1 Lots are sold on an 'as is' basis and it is the responsibility of prospective Buyers to examine a Lot prior to the Sale and to satisfy themselves as to the condition of the Lot and that the Lot matches any written or oral description provided by the Seller or the Company.
16.2 All descriptions provided by the Seller or the Company are subject to any statements made by the Auctioneer from the rostrum prior to any bid being accepted for the Lot and any illustrations in the Catalogue are solely for the guidance of prospective Buyers and should not be relied upon in terms of tone or colour or necessarily to reveal imperfections in any Lot.
16.3 In bidding for any Lot, prospective Buyers agree that they have not been induced to make any bid by any representation, to the extent the representation is not misleading or deceptive, in respect of the Lot by the Company, including any representation arising from a document that has been provided by the Seller to the Company in association with the Sale of a Lot and made available by the Company for inspection by prospective Buyers. If prospective Buyers wish to rely on any representation made by or on behalf of the Company, they must advise the Company in writing of this prior to the Sale.
16.4 If the Company is found to be liable for any loss or damage suffered, other than in circumstances where the loss or damage suffered is as a result of the Company (and its employees or agents) not acting with due care and skill or the Company (and its employees or agents) engaging in misleading or deceptive conduct,
(a) the maximum liability of the Company to a Buyer shall be the Sale Price of the relevant Lot or
(b) the maximum liability of the Company to a Seller shall be the Sale Proceeds of the relevant Lot,
and the Company shall not be liable for any consequential or indirect loss whatsoever.
16.6 The benefits of this clause are for the Buyer only and cannot be assigned.
17. Premium
The Buyer shall not pay the Company the Premium.
18. Contract of sale
18.1 Subject to the Company's discretion, on the acceptance of a bid by the fall of the Auctioneer's hammer a contract of sale is made between the Seller and the Buyer. The Company is not a party to the contract of sale and shall not be liable for any breach of that contract by either the Seller or the Buyer.
18.2 Risk of the Lot will pass to the Buyer on the fall of the Auctioneer's hammer.
18.3 Title to the Lot will pass to the Buyer when the full Purchase Price has been received by the Company by way of cleared funds.
19. Payment by Buyer
19.1 At that same time that a prospective Buyer registers to bid he or she must give the Company his or her name and address and, if requested by the Company, banking or other suitable references or identification and an acknowledgement that they have read and agreed to be bound by these Conditions.
19.2 The Purchase Price must be paid to the Time+Tide Watches not later than 4.00 pm on the second day after the conclusion of the Sale.
19.5 Full payment for all Lots must be made to the Company by cash, electronic funds transfer or approved credit card.
19.6 No Lot may shipped until the full Purchase Price has been received by the Company unless prior arrangements in writing have been made with the Company before the date of the Sale, provided always that ownership of the Lot will not pass to the Buyer until cleared funds in payment of the full Purchase Price have been received by the Company.
20. Collection of Goods
Purchases are to be collected and paid for by the second day after the Sale. The Buyer or Seller (as applicable) shall be responsible for any removal, storage, or other charges for any Lot after this day. The Buyer or Seller (as applicable) is responsible for arrangements for shipping, handling and packing of goods including transit insurance. If the Company introduces any Carrier, Packer or Shipper no recommendation is to be implied.
21. Responsibility for Lots purchased
21.1 The Buyer shall be responsible for any loss or damage to, or caused by, a Lot purchased by the Buyer from the fall of the Auctioneer's hammer and neither the Company nor its employees or agents shall be responsible for any Claim while the Lot is in its power, possession or custody, except where the Company (and its employees or agents) has not acted with due care and skill.
21.3 The Buyer shall be solely responsible for obtaining any export licence that may be required in connection with a purchased Lot.
22. Non-payment or failure to collect
22.1 If the Purchase Price in respect of a Lot is not paid for in full in accordance with clause 19, the Company may, after a period of two weeks (during which time the Company will attempt to contact to the Buyer), and in its absolute discretion and without prejudice to any other rights or remedies it may have, exercise one or more of the following remedies:
(a) re-sell the Lot without reserve by auction, private treaty or any other means provided that 2 days prior notice is given to the Buyer who agrees not to challenge the resale price achieved in respect of the Lot;
(b) remove, store and further insure the Lot at the expense of the Buyer;
(d) retain any Lot sold to the Buyer at the same or any other auction until payment of the Purchase Price by the Buyer;
(e) apply the proceeds of the Sale of any Lot then due or at any time thereafter becoming due to the Buyer in payment or part payment of the Purchase Price;
(f) exercise a lien on or exercise a power of sale over any other property of the Buyer in the power, possession or control or the Company;
(g) rescind the Sale of that Lot or any other Lot sold by the Seller to the Buyer at the same or any other auction sale;
(h) repossess any goods comprising any Lot in respect of which payment is overdue and thereafter resell the same, and for this purpose the Buyer hereby grants an irrevocable licence to the Company to enter upon all or any of the Buyer's premises (with or without vehicles) during normal business hours, without prejudice to any other rights of the Company;
(i) issue legal proceedings against the Buyer;
(j) reject a bid from the Buyer at any future auction sale or require the Buyer to pay a deposit before any bid is accepted by the Company at any future Sale.
22.2 If the Lot is not collected in accordance with clause 20, the Company may, after a period of two weeks (during which time the Company will attempt to contact to the Buyer), and in its absolute discretion and without prejudice to any other rights or remedies it may have, exercise one or more of the following remedies:
(a) remove, store and further insure the Lot at the expense of the Buyer;
(b) rescind the Sale of that Lot or any other Lot sold by the Seller to the Buyer at the same or any other auction sale.
22.3 The Buyer shall pay all reasonable legal and other costs reasonably incurred by the Company or the Seller (whether or not Court proceedings shall have been issued) as a result of the Buyer's non-payment for and/or failure to collect a Lot, on a full indemnity basis, together with interest thereon at the rate specified in clause 22.1(c) from the date upon which the Buyer shall have become liable to pay costs.
23. Absentee or commission bids
23.1 An absentee bidder may make an absentee bid in the form of written instructions directing the Company to bid on one or more Lots up to a maximum amount specified for each Lot. The Company will execute the absentee bid at the lowest possible price taking into account the Agreed Reserve and other bids. There is no charge for this service. If identical bids are left by two or more parties, the first bid received by the Company will take preference. The Auctioneer may execute bids for absentee bidders directly from the rostrum, clearly identifying these as absentee or commission bids.
23.2 The Company is prepared to execute telephone bids on behalf of prospective Buyers who are not at the auction at no charge on the condition that the prospective Buyer acknowledges that taking instructions by telephone in the course of an auction has inherent risks (such as miscommunication, misunderstanding or other problems caused by a telecommunications fault or failure including a mobile telephone connection falling out).
23.3 A telephone bidder may nominate an emergency bid amount to cover an instance where a telephone connection is not available. The operator can execute the bid up to the nominated amount in the telephone bidder's absence.
23.4 The Company shall not be responsible for any errors or omissions in connection with the execution of absentee or telephone bids.
24. GST
24.1 Interpretation
Words or expressions used in this clause 24 that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning.
24.2 GST / VAT / Sales Tax and amounts payable to the Company:
(a) All amounts owing by the Seller to the Company (including, without limitation, the Seller's Commission, the Offer Fee, the Indemnity Fee, and Expenses) under this agreement do not include GST / VAT / Sales Tax. If and to the extent that any amount owing by the Seller to the Company is consideration for a taxable supply by the Company, the amount shall be increased by an amount equal to the GST / VAT / Sales Tax payable by the Company on that supply.
(b) All amounts payable by the Buyer to the Company under this agreement (including, without limitation, the Premium) do not include GST / VAT / Sales Tax. If and to the extent that any amount payable by the Buyer to the Company is consideration for a taxable supply by the Company, the Buyer must pay to the Company, an additional amount equal to the GST / VAT / Sales Tax payable on the supply.
24.4 GST / VAT / Sales Tax on sale of Lot to Buyer
(a) The Sale Price is not inclusive of GST / VAT / Sales Tax / Import Chargea (if any). As this auction is worldwide all buyers are responsible for the tax considerations in their respective jurisdiction.
(e) The Company may (at its absolute discretion and at the request of the Buyer), agree to arrange for the export of the Lot on such conditions as the Company sees fit.
24.6 Reimbursements (net down)
If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled on the acquisition of the taxable supply to which that loss, cost or expense relates.
25. Currency converter
The Company may provide a currency converter for the convenience of bidders. The rates quoted for conversion of other currencies to Dollars (or the currency in which the relevant Sale is conducted) are indicative only and neither the Company nor its agents shall be responsible for any errors or omissions in the converter.
26. Governing Law and Jurisdiction
26.1 These Conditions are governed by and shall be construed in accordance with the law of the Victoria, Australia.
26.2 The Company, the Seller, the Buyer and any bidders at the Sale irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Sale State.
27. Notices
27.1 A notice, demand, consent or approval or communication under these Conditions ('Notice') must be:
(a) in writing, in English, and signed by a person duly authorised by the sender; and
(b) delivered by hand or sent by prepaid post, and by airmail when sent to a destination outside Australia, or facsimile or email to the recipient's address as varied by any Notice given by the recipient to the sender.
27.2 A Notice given in accordance with clause 27.1 takes effect when it is taken to have been received (or at a later time specified in it).
28. General provisions
28.1 The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
28.2 These Conditions constitute the entire agreement of the parties on the subject matter. All representations, communications and prior agreements, to the extent they are not misleading or deceptive, in relation to the subject matter are merged in and superseded by these Conditions.
28.3 The parties agree that, if the whole or any part of any one or more provisions is judged invalid or unenforceable, that portion will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
28.4 Neither party shall be liable for any loss or damage or be deemed to be in breach of these Conditions if its failure to perform or failure to cure any of its respective obligations hereunder results from any event or circumstance beyond its reasonable control. The party interfered with shall give the other party prompt written notice of any such force majeure condition. If notice is provided, the time for performance or cure shall be extended for a period equal to the duration of the force majeure event or circumstance described in such notice, except that any such cause shall not excuse the payment of any sums owed to the Company prior to, during, or after any such force majeure condition.
28.5 The Company reserves the right to register its interest in any Lot on the Personal Property Security Register as provided for under the Personal Property Securities Act 2009 in its own right or for and behalf of the Buyer or Seller as the case may be.
IMPORTANT NOTICES TO PROSPECTIVE BIDDERS
Time+Tide Watches makes no representation or warranty regarding any outside Valuation on offer. Prospective bidders should note the date and purpose for which the valuation was produced and all buyers must make their own assessment as to an item's value.
Where possible precise weights, measures and grading are provided. However, since in many cases this is not possible, buyers should not rely on any as being exact. When a weight is described as "approximately" it is in the opinion of the auctioneer an estimation of the weight of the gemstones in their settings and should therefore be considered as an approximation. This information is given as a guide and prospective bidders should satisfy themselves with regard to this information as to its accuracy.
It is the buyer's responsibility to obtain any export or import licenses and/or certificates as well as any other statutory documentation prior to shipping. The inability of import of any such items shall not justify cancellation or rescission of the sale contract or any delay in payment. Please check with the specialist department if you are uncertain as to whether a lot is subject to any restrictions on importation or exportation.