damage to an Auction Property and/or any manner of restored piece and/or
any repaired piece (including repainting or overpainting) shall not be deemed a
forgery.
Please note that the foregoing warranty shall not apply if:
(1) The information in the catalogue is based on the generally accepted opinions of
academics and experts on the selling date, or said information in the catalogue
indicates that there exist confl icts in such opinions; or
(2) On the selling date, the only means of proving that the Auction Property in
question is a forgery is not generally available or recognized at such time, is
extremely expensive or is impractical; or may already have caused damage to
the Auction Property or may (in the reasonable opinion of the Company) already
have caused the Auction Property to lose value; or
(3) If, based on its description, the Auction Property has not lost any material value.
2. The period specifi ed by this warranty simply provides the Buyer an exclusive
non-transferrable benefi t for 5 years after the relevant Auction Date. To lodge a
claim based on this warranty, the Buyer must:
(1) notify the Company in writing within three months after the receipt of any
information which leads the Buyer to doubt the authenticity or attributes of
the Auction Property, specifying the reference number of the Auction Property,
the date on which the Auction Property was purchased and the reasons for
believing that the Auction Property is a forgery;
(2) return the Auction Property to the Company in a condition identical to that on
the date on which it was sold to the Buyer, and provided that good title thereto
is transferrable and no third party claims have been made in respect thereof
since the selling date.
3. With respect to contemporary and modern art, Chinese oil paintings and
Chinese paintings and calligraphy, although academic circles do not permit
the making of defi nitive statements in respect thereof at present, the Company
reserves the discretion, pursuant to this warranty, to cancel transactions of
contemporary and modern art, Chinese oil paintings and Chinese paintings
and calligraphy that are confi rmed to be forgeries, but only within one year after
the Auction Date. The amount paid shall be refunded to the Buyer pursuant to
this Article, provided that the Buyer provides to the Company evidence (by the
methods set forth in clauses 2 and 4 of this Article) confi rming that the Auction
Property is a forgery within one year from the Auction Date;
4. The Company may, at its discretion, decide to waive any of the foregoing
provisions. The Company shall have the right to request that the Buyer obtain,
at his or her expense, reports from two experts acceptable to the Company and
the Buyer who are independent and recognized in the industry. The Company
shall not be subject to any report presented by the Buyer, and reserves the right
to seek the opinion of additional experts at its own expense.
Article 34 Obtaining Information, Video Taking
With respect to the operation of the Company’s auction business, the Company may
make audio recordings, video recordings or keep a record of any auction process,
and may need to collect personal information from the Bidder or request information
about the Bidder from third parties (such as requesting a credit review from a bank).
Such information will be processed and kept confi dential by the Company. However,
relevant information may be provided to the Company, its divisions, affiliates,
subsidiaries or parent, or China Guardian, its divisions, affiliates, subsidiaries or
parent in order to assist the Company in providing excellent services to Bidders,
carrying out client analyses, or providing services that satisfy the requirements of
Bidders. For the benefi t of the Bidder, the Company may also be required to provide
certain personal information of the Bidder to third party service providers (such as
shipping companies or warehousing companies). By participating in the auction by
the Company, the Bidder indicates that he or she consents to the foregoing. If the
Bidder wishes to obtain or amend his or her personal information, he or she is asked
to contact the customer service department.
Article 35 Copyright
The Seller authorizes the Company to produce photos, illustrations, a catalogue, or
other form of video recording of, and publicity materials for, any Auction Property
that he or she has consigned to the Company for auction, and the Company enjoys
the copyrights therein, and has the right to use the same in accordance with the law.
Without the prior written consent of the Company, neither the Buyer nor anyone else
may use the same. Neither the Company nor the Seller gives any representations or
warranties as to whether the Auction Property is subject to copyright or whether the
Buyer secures any copyright in the Auction Property.
Article 36 Notices
The Bidder and the Buyer shall inform the Company of their fixed and valid
correspondence address and contact information by the method specifi ed in the
bidding registration documents or other method approved by the Company. In the
event of a change, the Company shall be promptly informed thereof in writing.
The notices mentioned herein only refer to written notices sent by post, by email, by
fax or by the Company’s mobile app (“Mobile App”). A notice shall be deemed as
served at the following times:
1. If served by hand, at the time it reaches the address of the relevant Party;
2. If by post, the seventh day after it is posted;
3. If by fax, when transmission is confi rmed by the sending fax machine;
4. If by email, when delivery is confi rmed by the email record;
5. A notice sent by the Company through Mobile App shall be deemed to be
received by the Bidder and the Buyer on the date when it is delivered.
Article 37 Severability
If any provision or part hereof is found invalid, unlawful or unenforceable for any
reason, the other provisions and parts hereof shall remain valid, and the relevant
parties shall abide by and perform the same.
Article 38 Laws and Jurisdiction
(1) These Conditions and related matters, transactions and any disputes arising
from, or in connection with, participation in the auction conducted by the
Company pursuant hereto shall be governed by, and construed in accordance
with, the laws of Hong Kong.
(2) Subject to Article 38.3 below, the Hong Kong courts have exclusive jurisdiction
to settle any disputes arising out of or in connection with any auctions
conducted by the Company (the “Disputes”). All of the Company, the Buyer
and the Bidder agree that the Hong Kong courts are the most appropriate and
convenient courts to settle the Disputes and accordingly no party will object to
submit to the exclusive jurisdiction of Hong Kong courts.
(3) This Article 38.3 is for the benefi t of the Company only. The Company shall not
be prevented from taking any proceedings relating to the Disputes in any other
courts with jurisdiction. To the extent allowed by law, the Company may take
concurrent proceedings in any number of jurisdictions.
Article 39 Language
The Chinese language version hereof shall be the governing version and the English
language version shall be for reference only.
In the event of a discrepancy between the English language version and the Chinese
language version, the Chinese language version shall prevail.
Article 40 Ownership of Copyright in the Conditions
These Conditions are formulated and shall be revised by the Company, and the
relevant copyrights shall vest in the Company. Without the prior written permission
of the Company, no one may use these Conditions in any manner or way to obtain
commercial benefits, and may not take copies of, communicate or store in any
searchable system any part hereof.
Article 41 Term of Applicability
These Conditions shall apply solely to the upcoming auction. The Company
may update these Conditions from time to time. When the Bidder and the Buyer
participate in another auction, then applicable Conditions of Business for Buyers
shall prevail.
Article 42 Right of Interpretation
During routine performance hereof, the right to interpret these Conditions shall be
exercised by the Company. In the event of a legal dispute between the Buyer and
the Company, the right of interpreting these Conditions, when resolving the dispute,
shall be exercised by the competent court.
Date of this version: 11th May 2022
Address of the Company: 5th Floor, Tower One, Lippo Centre, 89 Queensway, Hong
Kong
Company, its divisions, affi liates, subsidiaries or parent company, or China Guardian,
its divisions, affiliates, subsidiaries or parent company, the Company and/or the
Seller reserve the right of possession /lien or any other lawful relieves.
Article 27 Transfer of Risks
Once a successful bid has been made, the risks attaching to the Auction Property
shall be solely borne by the Buyer once any of the following circumstances (whichever
is earlier) arises:
1. the Buyer collects the Auction Property; or
2. the Buyer pays all of the Purchase Price for the Auction Property to the
Company; or
3. the lapse of seven days after the Sale Date.
Article 28 Collection of the Auction Property
The Buyer must, within seven days from the Sale Date, proceed to the Company’s
address or other location designated by the Company to collect the Auction
Property he or she purchased. The Buyer shall be solely responsible for purchasing
insurance for the Auction Property he or she purchased once the risks pass to him
or her. If the Buyer fails to collect the Auction Property within seven days from the
Sale Date, he or she shall bear all of the relevant costs for storing, handling, insuring,
etc. the Auction Property in question, and he or she shall bear all of the liability
for the Auction Property he or she purchased. Furthermore, notwithstanding the
Auction Property remaining in the custody of the Company or another agent, none
of the Company, its employees or agents shall be liable for damage to or loss of the
Auction Property, regardless of the reason the same arises.
Article 29 Packing and Shipping
The packing and processing by the employees of the Company of the purchased
Auction Property as required by the Buyer shall solely be deemed as a service
provided by the Company to the Buyer, and the Company may decide at its own
discretion whether to provide such service. If any losses arise therefrom, they
shall solely be borne by the Buyer. Under no circumstance shall the Company be
liable for damage to glass or frame, box, backing sheet, stand, mounting, inserts,
rolling rod or other similar auxiliary object arising for any reason. Furthermore, the
Company shall not be liable for any errors, omissions, damage or loss caused by
the packing company or removal company recommended by the Company to the
Buyer.
Article 30 Import/Export and Permits
The Buyer shall himself or herself be responsible for securing any relevant import
and export, endangered species or other permit for the Auction Property. A failure
or delay in obtaining any required permit shall not be deemed as grounds for
cancelling the purchase or delaying payment of the Purchase Price by the Buyer.
The Company shall not bear any liability for the failure to duly complete or submit the
required import or export waybill, list or documents.
If the Buyer requests that the Company apply for an export permit on his or her
behalf, the Company shall have the right to charge him or her a separate service
fee for such service. However, the Company does not warrant that such export
permit will be issued. Neither the Company nor the Seller gives any representations
or warranties as to whether or not any Auction Property is subject to import/export
restrictions or any embargo.
Article 31 Remedies for Non-Payment and Specifi c Performance
If the Buyer fails to make payment in full pursuant to these Conditions or any
payment arrangement agreed with the Company, the Company shall have the right
to take one or more of the following measures:
1. If the Buyer fails to pay all of the Purchase Price in full to the Company within
7 days from the Sale Date, the Company shall have the right to engage a third
party organization to collect all or part of the outstanding Purchase Price from
the Buyer;
2. If the Buyer fails to pay the Purchase Price in full within 7 days from the Sale
Date, the Company shall have the right to charge interest at the rate 0.03% per
day on the Buyer’s outstanding amount starting from the 8th day after the Sale
Date until the date on which the Buyer pays the entire amount in full, unless the
Buyer and the Company agree otherwise;
3. All risks and charges relating to insurance coverage taken out on the Auction
Property, removal thereof, or storage thereof, at or from the Company or
elsewhere shall be borne by the Buyer;
4. To institute a legal action against the Buyer, demanding that he or she
compensate it for all the losses incurred as a result of his or her breach of
contract, including the interest losses arising due to delay in payment or refusal
to pay by the Buyer;
5. To exercise a lien on the Auction Property in question and any other Auction
Property of the Buyer purchased under the auspices of the Company, and any
other property or property rights of the Buyer that may be in the Company’s
possession for any reason, and all expenses and/or risks arising during the
duration of the lien shall be borne by the Buyer. If the Buyer fails to perform all
of his or her relevant obligations by the deadline designated by the Company,
the Company shall have the right to dispose of the subject matter of the lien
after issuing notice to the Buyer that it is exercising its lien rights and if the
Buyer fails to discharge all outstanding amounts within 30 days after issuance
of such notice. If the proceeds from the disposal of the subject matter of
the lien are insufficient to offset all the monies payable by the Buyer to the
Company, the Company shall have the right to separately recover the same;
6. If the Buyer still has not paid all of the Purchase Price in full to the Company
within 90 days from the Sale Date, the Company shall have the right (but shall
not be obliged) to decide, at its absolute discretion, to cancel the transaction
or agree to cancellation of the transaction by the Seller, and reserves the right
to recover all of the losses suff ered by the Company due to cancellation of the
transaction;
7. To offset any amount related to the Auction Property owed by the Buyer to
the Company against any amount owed from any other transaction by the
Company, its divisions, affi liates, subsidiaries or parent, or China Guardian, its
divisions, affi liates, subsidiaries or parent to the Buyer;
8. To decide at its discretion to use any monies paid by the Buyer to discharge the
amount owed by the Buyer to the Company, its divisions, affi liates, subsidiaries
or parent, or China Guardian, its divisions, affi liates, subsidiaries or parent in
connection with the Auction Property or other transaction;
9. To refuse any future bids made by the Buyer or his or her agent, or to charge
him or her a bid deposit before accepting his or her bids;
The Company is aware that the Auction Property is unique and irreplaceable, if either
the Seller or the Buyer defaults, the payment of damages by one party to another
shall not be a suffi cient remedy to the observant party. Accordingly, the Company,
the Buyer and the Seller agree that any such breach, the observant party may apply
to the court to order specifi c performance, requiring the defaulting party to perform
his/her obligations under these Conditions or their ancillary documents.
Article 32 Remedies for Delay in Collecting the Auction Property
If the Buyer fails to collect the purchased Auction Property within seven days from
the Sale Date, the Company shall have the right to take one or more of the following
measures:
1. To take out insurance coverage for the Auction Property and/or store the same
on Company premises or elsewhere, with all of the costs (including but not
limited to charging the Storage Fee specifi ed on the Bidder Registration Form
from the 31st day following the Sale Date) and/or risks arising therefrom borne
by the Buyer. In such a case, the Buyer may collect the Auction Property
(packing and handling charges, freight and insurance charges, export related
charges at the sole expense of the Buyer) only after he or she has paid all of the
Purchase Price in full;
2. If the Buyer fails to collect the relevant Auction Property by the deadline
prescribed herein, he or she shall solely be liable for all the risks and expenses
arising after the expiration of such deadline.
Article 33 Limited Warranties
1. The general warranties provided to the Buyer by the Company are as set forth
below:
If it is discovered after an Auction Property is sold by the Company that the
same is a forgery, the Company will, in accordance herewith, cancel the
transaction and refund to the Buyer in the original currency the Hammer price
together with the Buyer’s Commission paid by the Buyer to the Company in
respect of the Auction Property.
For the purposes of the foregoing, a forgery, based on the reasonable opinion of
the Company, means such things as a forged work or intentional concealment
or a fraudulent claim in respect of the source, place of origin, date, production
year, age, culture or origin, etc. of a work, and a correct description of the
foregoing is not included in the catalogue (considering any terms of art). Any
