TOMIKAI TERMS AND CONDITIONS 2023
TERMS AND CONDITIONS
TOMIKAI AUCTION Co., LTD
IMPORTANT NOTICE:
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
THESE TERMS AND CONDITIONS SET OUT THE TERMS WHICH TOMIKAI AUCTION CO., LTD. OFFERS THE LOTS LISTED IN THIS SALE.
YOU SHOULD READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING TO BID AND/OR BIDDING FOR ANY LOT.
BY REGISTERING TO BID AND/OR BIDDING FOR ANY LOT, YOU AGREE TO THESE TERMS AND CONDITIONS AND THEY WILL BE CONTRACTUALLY BINDING ON YOU. THE TERMS AND CONDITIONS ALSO DESCRIBE CERTAIN LIMITATIONS AND EXCLUSIONS OF LIABILITY, WHERE APPLICABLE.
PLEASE ENSURE THAT YOU HAVE UNDERSTOOD ALL CHARGES, FEES, AND TAXES THAT MAY BE APPLIED TO YOUR BID PRICE BEFORE YOU PLACE YOUR BID.
1. INTRODUCTION
1.1. These terms and conditions set out the terms upon which TOMIKAI Auction Co., LTD. offers the lots for sale.
1.2. By registering to bid and/or by bidding for any lot, you agree that these terms and conditions shall be contractually binding on you.
2. DEFINITIONS
2.1. In these T&Cs, unless the context otherwise requires, the following words or expressions shall have the following meanings:-
(a) "Auction" means the sale of a Lot which is conducted by means of the platform utilised and/or provided by TOMIKAI and its partners;
(b) "Bidder" (also referred to as "you" and "your") means any person who has registered to bid and/or is considering, making, and/or attempting to make a bid and/or has made a bid in an Auction and includes Buyers in these T&Cs;
(c) "Buyer" means the person who makes the highest bid for a Lot in an Auction;
(d) "condition" means the physical condition of a Lot;
(e) "Due Date" has its meaning defined in Clause 5.5 below;
(f) "TOMIKAI" (also referred to as "we" and "our") means TOMIKAI Auction Co., LTD. .;
(g) "Hammer Price" means the highest bid accepted from a Bidder for a Lot during an Auction;
(h) "Purchase Price" means the sum of the Hammer Price, Buyer's Premium, and any other charges, fees, and taxes that may be applicable;
(i) "Seller" means the person offering a Lot for sale (including their agents, executors, and/or personal representatives, but excluding TOMIKAI); and
(j) "T&Cs" means these terms and conditions.
2.2. In these T&Cs:-
(a) clause headings are inserted for convenience of reference only and shall not affect the interpretation of these T&Cs;
(b) words importing the plural shall, except where the context otherwise requires, include the singular and vice versa;
(c) any reference to the masculine gender shall include the feminine or neuter genders and vice versa;
(d) any references to persons shall be construed as references to an individual, firm, company, body corporate, statutory board, government body, incorporated body of persons, association or trust as the context may require;
(e) any references, express or implied, to statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application is modified from time to time by other provisions (whether before or after the date of this Agreement) and shall include any statutes or provisions of which they are re-enactments (whether with or without modification) and any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision. References to sections of consolidating legislation shall wherever necessary or appropriate in the context be construed as including references to the sections of the previous legislation from which the consolidating legislation has been prepared; and
(f) any reference to "include" or "including" shall be deemed to be followed by "without limitation" or "but not limited to" whether or not they are followed by such phrases or words of like import.
3. DUTIES OF THE BIDDER AND TOMIKAI IN RESPECT OF ITEMS FOR SALE
3.1. TOMIKAI's knowledge in relation to each Lot is limited, and is largely dependent on information provided to it by the Seller. TOMIKAI is not able to and does not carry out exhaustive due diligence on each Lot. Bidders agree, acknowledge, and accept these facts, and further accept responsibility for carrying out their own investigations to satisfy themselves as to the Lots in which they may be interested.
3.2. Bidders acknowledge that many Lots are of an age and type which means that they are not in perfect condition. All Lots are offered for sale in the condition they are in at the time of the sale in the relevant Auction, without any representation, warranty, and/or assumption of liability of any kind as to their condition by TOMIKAI. Any reference to the condition of a Lot by TOMIKAI will not amount to a full description of its condition, and the absence of any reference to the condition of a Lot does not imply that the Lot is free from faults or imperfections. The images of any Lot provided by TOMIKAI may not accurately reflect the actual condition of the Lot. In particular, the images may represent colours and shades which are different to the Lot's actual colour and shades. None of TOMIKAI's representations, warranties, descriptions, and/or statements as to a Lot shall be an alternative to you taking your own professional advice regarding the condition of the Lot.
4. BIDDING IN AN AUCTION
4.1. Connectivity and Technical Issues:
(a) Technical problems beyond TOMIKAI's reasonable control (including internet, firewall, website, and connectivity issues) may create difficulties including for accessing the Auction and maintaining continuity of such access.
(b) TOMIKAI shall not be responsible to you for errors or failures to execute bids placed on the internet and does not accept any liability in connection with this activity.
4.2. TOMIKAI's Discretion in relation to Bidding / Purchasing:
(a) TOMIKAI reserves the right in its absolute discretion at any time:-
(i) to impose conditions upon your access to any Auction including the requirement for your disclosure of your personal particulars as well as the imposition of limitations on your bids;
(ii) to reject and/or deny your access to any Auction;
(iii) to reject, revoke, and/or refuse to accept any bid, and/or to cancel any bid even if it has been previously accepted;
(iv) to withdraw any Lot or cancel the Auction whether prior to or during the Auction and TOMIKAI shall have no liability whatsoever in connection with such withdrawal or cancellation;
(v) to divide or combine any Lots; and
(vi) in the case of error or dispute, to continue the bidding, determine the successful Buyer, cancel the sale of the Lot, or re-offer and re-sell any Lot. If any dispute relating to bidding arises during and/or after the sale, TOMIKAI's decision in the exercise of this option is final and TOMIKAI accepts no liability for any loss and/or damage in connection and/or arising out of this regard.
4.3. Bidding Process:
(a) Bidding opens at a specified amount and escalates in bid increments which shall be subject to TOMIKAI's sole discretion;
(b) If a bid is successfully submitted on a Lot in an Auction from a Bidder's account, computer, and/or mobile device, the Bidder irrevocably agrees to pay the amounts identified in Clause 5.2 below, in full;
(c) TOMIKAI is not responsible for any errors that the Bidder makes in bidding on a Lot;
(d) Unless TOMIKAI decides to exercise its discretion in accordance with Clause 4.2 above, the Bidder with the highest bid when the Lot closes (i.e. the Hammer Price) shall be the successful Buyer. This means that a contract for sale has been formed between TOMIKAI and the Buyer when the Lot closes.
5. THE BUYER'S PAYMENT OBLIGATIONS
5.1. If you are a successful Buyer of a Lot:-
(a) you will receive from TOMIKAI a purchase invoice for its Purchase Price as soon as reasonably practical; and
(b) you agree to provide to TOMIKAI, if so requested, sufficient proof of identity to TOMIKAI's satisfaction.
5.2. If you are a successful Buyer of a Lot, you shall be issued a purchase invoice and shall pay the Purchase Price, which is the total of the following amounts:-
(a) the Hammer Price;
(b) the Buyer's Premium.
(c) applicable taxes (including the prevailing Goods and Services Tax under the law of the Janpan) as well as any other applicable charges, fees, and taxes.
5.3. All payments due to TOMIKAI shall be made in Japanese Yen.
5.4. For the avoidance of doubt, the Buyer of a Lot is solely responsible for the payment of any tax (including sales tax, value added tax, goods and services tax, or any other similar tax) payable as a result of the sale of a Lot.
5.5. Unless otherwise expressly agreed in writing, payment of the total amount specified in the purchase invoice for a Lot is due immediately following receipt of TOMIKAI's invoice for the relevant purchased Lot and in no event no later than five (5) working days after receipt of the purchase invoice (the "Due Date").
5.6. TOMIKAI will only accept payment from the registered Buyer and cannot change the Buyer's name on an invoice or reissue the purchase invoice in a name which differs from the registered Buyer.
5.7. Payment may be made to TOMIKAI by way of VISA, Mastercard, American Express, or bank transfer at the details below:-
Account Name : TOMIKAISHOJI
Account No : 087-3574847
SWIFT Code : CHBAJPJT
Bank Code : THE CHIBA BANK LTD
Branch Code : HANANOI BRANCH
Beneficiary : THE CHIBA BANK LTD. 681 HANANOI KASHIWA CITY CHIBA
bank name JAPAN.
and address
5.8. Title in a purchased Lot will not pass until TOMIKAI has received the total amounts due for that Lot in accordance with Clause 5.2 above in cleared funds. TOMIKAI is not obliged to release a Lot to the Buyer until title in the Lot has passed and appropriate identification has been provided. Any earlier release of the Lot does not affect the passing of title or the Buyer's unconditional obligation to pay the total amounts due for that Lot un accordance with Clause 5.2 above.
5.9. Unless otherwise expressly agreed in writing, risk in and responsibility for the purchased Lot will transfer to the Buyer from whichever is the earlier of the following:-
(a) when the Lot comes into the Buyer's physical possession or that of any person or carrier the Buyer authorises to take possession of the Lot; or
(b) if the Buyer collects the Lot in person, when the Buyer collects the Lot.
5.10. If the Buyer fails to pay TOMIKAI the total amounts due for the purchased Lot(s) in accordance with Clause 5.2 above in full by the Due Date, TOMIKAI shall be entitled to exercise any of the remedies identified in Clause 6 below.
6. REMEDIES FOR NON-PAYMENT
6.1. If the Buyer without prior agreement fails to make payment for the Lot by the Due Date, TOMIKAI may in its sole discretion exercise one or more of the following remedies:-
(a) store the Lot at its premises or elsewhere at the Buyer's sole risk and expense;
(b) cancel the sale of the Lot;
(c) set off any amounts owed to the Buyer by TOMIKAI against any amounts owed to TOMIKAI by the Buyer in respect of the Lot;
(d) apply any payments made by the Buyer to TOMIKAI as part of the amounts due pursuant to Clause 5.2 above towards that or any other Lot purchased by the Buyer, or to any shortfall on the resale of any Lot pursuant to Clause 6.1(i) below, or to any damages suffered by TOMIKAI as a result of breach of contract by the Buyer;
(e) deduct any amounts owing and due from the Buyer to TOMIKAI from the credit card associated with the Buyer's account on the relevant online platform the Auction is carried out on;
(f) reject future bids from the Buyer or render such bids subject to payment of a deposit or any other condition that TOMIKAI deems fit to impose at its sole discretion;
(g) charge interest at a rate not exceeding 1.5% per month from the Due Date to the date of full payment of all sums due from the Buyer to TOMIKAI;
(h) exercise a lien over any of the Buyer's property which is in possession of TOMIKAI. TOMIKAI shall inform the Buyer of the exercise of any such lien and within fourteen (14) days of such notice may arrange the sale of such property and apply the proceeds to the amount owed to TOMIKAI;
(i) resell the Lot by Auction or private sale. In the event that the price obtained for the Lot at resale is less than the Purchase Price for that Lot, the Buyer will remain liable for the shortfall together with all costs incurred in such resale; and/or
(j) commence legal proceedings to recover the Purchase Price together with interest and the costs of such proceedings on a full indemnity basis.
7. STORAGE
7.1. All items will be held by TOMIKAI free of charge up to three (3) days from the date of the sale. After this date, reasonable storage rates as well as applicable charges including insurance will be chargeable on a daily basis.
8. BIDDER'S AND/OR BUYER'S WARRANTIES
8.1. The Bidder and/or Buyer warrants that:-
(a) the Bidder and/or Buyer is acting as principal in its dealings and/or transactions with TOMIKAI and is not acting herein as an agent for any other person whether disclosed or otherwise;
(b) the Bidder and/or Buyer is not subject to trade sanctions, embargoes, or any other restriction on trade in the jurisdiction in which it does business as well as under the laws of the Japan, and is not owned (nor partly owned) or controlled by such sanctioned persons; and
(c) the funds used for purchase and settlement of the Lot(s) are not connected with nor have any link to nor are derived from any criminal activity, including without limitation tax evasion, money laundering, terrorist activities or other criminal activity, and the Bidder and/or Buyer is neither under investigation, nor has been charged with or convicted of without limitation, tax evasion, money laundering, terrorist activities or other criminal activity.
8.2. TOMIKAI reserves the right to seek identification of the source of funds received, and to make enquiries about any person transacting with TOMIKAI. If TOMIKAI has not completed its enquiries in respect of anti-money laundering, anti-terrorist financing, or other checks as it considers appropriate concerning the Bidder and/or Buyer to TOMIKAI's satisfaction at its sole discretion, TOMIKAI shall be entitled either not to complete or to cancel the sale of any Lot, as appropriate, and to take further action required or permitted under applicable law without any liability to the Bidder and/or Buyer.
9. LIMITATION AND EXCLUSION OF LIABILITY
9.1. To the fullest extent permissible under applicable law, TOMIKAI disclaims and excludes any and all other warranties of any kind relating to the Lots and the Auction, whether express or implied by statute, common law, or otherwise.
9.2. TOMIKAI shall not be responsible to you for any reason other than in the event of fraud or fraudulent misrepresentation by TOMIKAI or other than as expressly set out in these T&Cs.
9.3. TOMIKAI shall not be responsible to you for any reason to give any representation, warranty, guarantee or assume any liability of any kind in respect of any Lot with regard to merchantability, fitness for a particular purpose, description, size, quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature, or historical relevance. Except as required by law, any warranty of any kind is excluded by this Clause.
9.4. TOMIKAI shall have no responsibility to any person other than the Buyer in connection with the purchase of a Lot.
9.5. If, in spite of the terms in this Clause 9, TOMIKAI is found to be liable to you for any reason, TOMIKAI shall not have to pay more than the Purchase Price paid by you to TOMIKAI. TOMIKAI shall not be responsible to you for any reason for any other damages or expenses.
10. GENERAL
10.1. Governing Law and Jurisdiction: These T&Cs and all aspects of all matters, transactions, or disputes to which they relate or apply shall be governed by and interpreted in accordance with the law of the Japan. For the benefit of TOMIKAI, all Bidders agree that the courts of the Republic of Japan shall have exclusive jurisdiction to settle all disputes arising in connection with all aspects of all matters or transactions to which these T&Cs relate or apply. All parties agree that TOMIKAI shall retain the right to bring proceedings in any court other than the courts of the Japan.
10.2. Service of Process: All Bidders irrevocably consent to service of process or any other documents in connection with any proceedings in any court, including where personal service is required, to be effected by facsimile transmission, delivery by mail, delivery by email, transmission by Short Messaging System, WhatsApp, Telegram, Line or any other similar messaging system as permitted by the law of the Japan, the law of the place of service, and/or the law of the jurisdiction where proceedings are instituted, at the last physical address, email address, landline telephone number and/or mobile phone number of the Bidder known to TOMIKAI.
10.3. Severability: If any provision of these T&Cs or part thereof is rendered void, illegal, or unenforceable by any law or legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of these T&Cs.
10.4. Events Outside TOMIKAI's Control: TOMIKAI shall not be responsible for any failure to meet any obligation which TOMIKAI has under these T&Cs which is caused by circumstances outside TOMIKAI's reasonable control. This includes strikes, lock-outs, fire, flood, natural disasters, war, pandemic, epidemic, government action, armed conflict, terrorist attack, and nuclear and chemical contamination.
10.5. TOMIKAI's Right to Cancel: In addition to any other rights contained in these T&Cs, TOMIKAI can cancel the sale of any Lot if:-
(a) any of your warranties and statements whether in these T&Cs or otherwise are not correct;
(b) TOMIKAI reasonably believes that completing the transaction is or may be unlawful; and/or
(c) TOMIKAI reasonably believes that the sale places TOMIKAI under any liability to anyone else or may damage TOMIKAI's reputation.
10.6. Non-Waiver: In no event shall any delay, failure or omission on the part of TOMIKAI in enforcing, exercising or pursuing any right, power, privilege, claim or remedy which is conferred by these T&Cs, or arises under these T&Cs, or arises from any breach by you of any of your obligations hereunder, be deemed to be or be construed as:-
(a) a waiver thereof, or of any other such right, power, privilege, claim or remedy, in respect of the particular circumstances in question; or
(b) operate so as to bar the enforcement or exercise thereof, or of any other such right, power, privilege, claim or remedy, in any other instance at any time or times thereafter.
10.7. Non-Transferability and Successors: You may not grant a security over or transfer your rights or responsibilities under these T&Cs on the contract of sale unless TOMIKAI has given its express written permission. These T&Cs will be binding on your successors, estate, and anyone who takes over your rights and responsibilities.
