TERM AND CONDITIONS OF THE CONTRACT TO AUCTION
Terms & Conditions of Selling with Dunn Bros SW Ltd
- Introduction
The contractual relationship between Dunn Bros SW Ltd registered in England & Wales under company number 13885838 and the Vendor is governed by:
1.1 The information as detailed on the Consignment Form
1.2 The Terms & Conditions detailed herein
1.3 Any additional notices and terms as amended by and Saleroom Notice or Auctioneers Announcement
1.4 In this Agreement, unless the contrary intention appears, words importing the masculine gender shall be inclusive of all genders and words in the singular shall include the plural and vice versa.
- Definitions
“Additional Items” means any Items delivered to site with the intention of being offered to Auction which have not been explicitly entered via the consignment form or any other written communications
“Aftersale” means the sale of a Vendors Items/ Lots that did not sell at Auction Level
“Agreement” means this Agreement which details herein the Terms and Conditions of Selling at Auction or an agreed Aftersale
“Auction” means an Auction conducted by Dunn Bros SW Ltd. This includes but is not limited to, Timed Auctions, Live Auctions, Hybrid Auctions
“Auction Site” means the premises from which an Auction is conducted
“Auctioneer” means Dunn Bros SW Ltd, its staff, representatives, and persons for the time being authorised by the Auctioneer to have conduct of the Auction
“Commission” means a percentage of the Hammer Price achieved (subject to a minimum payment) due to the Auctioneer upon the sale of any Lots as detailed on your Pre-Sale Advice or at Clause XX within this agreement.
“Consignment” means any equipment delivered to the Auction Site for the purpose of being sold at Auction
“Entry Deadline” is the date specified on our Online Consignment Form as applicable to Rolling & Stationary Stock. Items accepted after the Entry Deadline may be subject to an increased Commission Rate, at the Auctioneers discretion. As a matter o policy the Auctioneer may not accept any Lots for sale after this date, subject to Clauses XX & XX
“Exclusivity Period” is a term not longer than 14 days post Auction where the Auctioneer is authorised to perform any Aftersales on the Lots unsold at Auction
“Hammer Price” means the Highest bid for any Lot accepted by the Auctioneer at an Auction
“Listing Fee” is an amount not more than £5.00+vat applied to each Lot per Auction payable to the Auctioneer on the completion, irrespective of whether the Lot sold or not.
“Lot” means and individual single part of a Consignment put to Auction by the Auctioneer
“Provisional Bids” means the highest bid made by a Potential Buyer which has not met the Reserve Price stipulated by the Vendor and provisionally accepted by the Auctioneer pending confirmation from the Vendor
“Purchaser” means the Highest Bidder of any Lot or agreed Aftersale
“Reserve Price” means the minimum Hammer Price agreed between Dunn Bros Sw Ltd and the Vendor at which a Lot may be sold
“Rolling Stock” means any Lots that are driven by their own power (e.g. excavators, tractors, forklift, trucks etc.)
“Stationary Stock” means any Lot not capable of being driven by their own power (incl. but not limited to generators, compressors, wacker plates, hammers, buckets, pumps, washers, mixers, trailers, garage equipment etc.)
“Safety Defect” refers to any fault on the item which would render the item unfit or unsafe to use according to the requirements of the applicable European Directives. Egs of Safety Defects: Missing ROPS, Damaged Safety Rails, Missing Seatbelt etc.
“Unsold Lot” means any individual part of a Consignment not sold the the Auction or as an After-Sale
“Unreserved Lot” means a lot sold without an agreed minimum price as specified by the Vendor
“Vendor” means any person offering a Lot for sale at Auction; including a Company and its agents or executors
Terms and Conditions
- The Vendor hereby instructs the Auctioneer to sell the Consignments through Auction as agent for the Vendor
- The Auctioneer will sell, without prejudice, any Lot where the Hammer Price has achieved the Vendors Reserve Price, in accordance with Clause 27.
- The Auctioneer can at its sole discretion sell any Lot where the Highest Bid achieved is within 10% of the Vendors Reserve Price
- In conjunction with Clause 27, the Auctioneer can sell unreserved any Lot that has been entered into three consecutive Auctions and remains unsold
- The Vendor at his own cost shall deliver all Stationary and Rolling stock to the Auction Site in good running order and free of any hazardous materials on or before the Entry Deadline
- Should the Vendor submit any Consignments for Auction after the Entry Deadline the Auctioneer may in its sole and absolute discretion accept these items for entry to the Auction. In the event that the items are accepted into the Auction, they will be deemed to be Additional Items and will incur an increase in Commission rate of 1% applied at the Auctioneers discretion. If the Vendor submits a Consignment for Auction as Additional Items, the Vendor agrees and accepts that the said Additional Items will be subject to the terms and conditions as contained herein.
- The Vendor shall deliver to the Auctioneer on or before the Entry Deadline all documents required by any Purchaser to allow the Lots to be freely used within the European Union (including but not limited to valid CE certification and other certificates where applicable). The Vendor acknowledges that the Auctioneer shall have no obligation to inspect any Lot to ensure compliance with any law or regulation or for any other purpose and the Vendor warrants that all Lots shall comply in all respects with all applicable laws, regulations and standards relating there to
- The Vendor is responsible to ensure that all consignments (where applicable) are registered with DVLA under the HMRC Notification of Vehicle Arrivals (NOVA) VAT Information Sheet 06/13. In the event that consignments are not registered, the Vendor authorizes the Auctioneer to process any NOVA application on their behalf and if applicable any outstanding VAT or any other charges are to be deducted from sale proceeds. In no circumstances shall the Auctioneer be deemed liable for any monies due to HMRC.
- The Vendor shall provide to the Auctioneer a description of the Consignments and warrants that this description shall be fully true and accurate and not misleading in all respects. All Consignments will be sold by the Auctioneer as agent for the Vendor with all faults and imperfections and errors of description. Illustrations and descriptions in catalogues and brochures are for identification purposes only.
- The Vendor agrees to stipulate on upon consignment whether any item has a Safety Defect and forward in writing full details of any and all defects. Where the Vendor fails to provide the information regarding the Safety Defects the Auctioneer will assume the item is not safe and may announce it as unsafe or may sell is as a Deadrow item. Liability for all Lot Descriptions including the Safety Defects lies with the Vendor. The Vendor agrees to indemnify the Auctioneer against any resulting shortfall or legal issue which may arise as a result of the Lot Description including the Safety Defect.
- The Vendor hereby authorizes the Auctioneer at its absolute discretion to carry out title searches in respect of any Lot at the expense of the Vendor. In no circumstances shall the Auctioneer be deemed to have a duty to conduct or be responsible for the results of such title searches. The Vendor also authorizes the Auctioneer to contact Creditors to determine amounts claimed against the Equipment. The Vendor authorizes the Auctioneer to carry out whatever necessary searches via HPI/ICB/Cartell/TER or any other such service to ensure consignment is free of finance or any other encumbrances. Charges for these services will be applied at varying amounts
- The Vendor warrants to the Auctioneer that he is the absolute owner of each Lot and is able to transfer a good and marketable title to each Lot free from third party claims or encumbrances of any nature. The Vendor will indemnify the Auctioneer, its servants and agents and the Purchaser against any loss or damage suffered by them in consequence of any breach of the above warranty on the part of the Vendor. Without prejudice to the foregoing the Vendor accepts that he is solely responsible for discharging all hire purchase and other liabilities on each Lot whether or not the Hammer Price is sufficient to discharge any such liabilities
- The Vendor will indemnify the Auctioneer against any and all loss, costs, expenses and liabilities caused to the Auctioneer whether directly, or as a result of the action, claim or demand of any third party, or by reason of any breach by the Vendor of this Agreement or of any terms or obligations on the Vendor’s part implied by any statute or statutory provision relevant to the Lots or the operation of this Agreement
- The Auctioneer shall have the absolute discretion without giving any reason to refuse any bid, to divide any Lot or Consignment, to combine any two or more Lots or Consignments, to refuse to auction any Lot, to withdraw any Lot from the Auction, regulate bidding and in case of dispute put any Lot up for auction again. The Auctioneer shall not be liable for any loss or damage claimed or suffered in respect of any of the above actions
- In all cases all Lots shall remain at all times at the risk of the Vendor until the receipt by the Auctioneer of cleared funds from the sale of the Lot and neither the Auctioneer nor its servants or agents will be responsible for any loss or damage whether caused by negligence or otherwise
- The Vendor shall insure the equipment to its full insurable value against all perils so that in the event of damage to or destruction of the equipment or any part thereof, all insurance proceeds shall be paid to the Auctioneer as if such were the Auction sale proceeds whereupon the Auctioneer shall be paid Commission in accordance with the terms of this Agreement and in addition paid any expenses and surcharges in accordance with any other terms or conditions herein
- In addition to Clause 10, the Vendor accepts that all lots will be sold in the condition it is received by the Auction Site and the Auctioneer will not be responsible for offering services or improvements to the condition of any Lot which may affect the Hammer Price; including, but not limited to (i) supplying glass and parts; (ii) Carrying out work such as the following: welding, steam cleaning, sandblasting, painting, repairing and other refurbishing; and (iii) Supplying fuel, batteries and tyre repair; and the Auctioneer shall not be liable for any perceived losses, claims or costs arising from its omissions
19.1 Where the Vendor requires any services which would improvement the condition of any Lot, including but not limited to those in Clause 18 these will only be carried out where written request from the Vendor has been received and a cost agreed
19.2 Where a Lot is delivered to site without a Key and this is required to start the machine, the Auctioneer will provide a standard Key for the cost of £5.00-£10.00+VAT
19.3 Where the Vendor uses the Auctioneers haulage services, the Vendor accepts to pay any expenses in the moving, haulage, storage and service calls and all costs incurred shall be at the expense of and paid by the Vendor
20. Neither the Vendor nor any person affiliated with, or, as agent of the Vendor shall make, or collude in the making of, bids for Lots at the Auction. In the event that the Vendor breaches this provision the sale of such Lots shall be deemed void and in addition to any other remedies of the Auctioneer or the Purchaser, the Vendor shall pay to the Auctioneer a commission of 25% of the Hammer Price upon resale.
Auction Fees
- The Vendor agrees to pay the Auctioneer a compulsory Listing Fee of £5.00+VAT per Lot, for each item consigned to Auction and any subsequent Auctions to which the Lot has been entered into
21.1 The Listing Fee will be applied automatically and without negotiation to the Vendor Statement and will be in addition to any commissions and/or any other sums due from the Vendor to the Auctioneer
21.2 In the event that Lots do not sell at Auction or in an After-Auction Sale the Listing Fee will remain payable to the Auctioneer by the Vendor, at the Auctioneers discretion
21.3 Listing Fees may be removed only at the Auctioneers absolute discretion.
- The Vendor hereby agree to pay the Auctioneer a Commission (plus any VAT thereon) based on the Hammer Price realised at Auction
22.1 Unless otherwise explicitly agreed, the standard Commission Rates will apply as follows: 8% of the Hammer Price on a Lot selling for less than £2000.00 or 5% where a Lot sells for £2000.00 or more
22.2 The Auctioneer shall be entitled to vary the rate of Commission by notice to the Vendor at any time prior to the commencement of the Auction
22.3 Without prejudice to the Vendor’s obligation to pay the Commission (together with any VAT thereon) and other sums due under this Agreement, the Vendor authorizes the Auctioneer to deduct Commissions and any other sums due by the Vendor to the Auctioneer on any account (plus any VAT chargeable thereon) from any sums received by the Auctioneer in respect of the sale of any Lot.
- Any Consignment that has been advertised in the Auction catalogue/brochure which is not delivered to the Auction Site for the Auction will be subject to a surcharge of £1000 per Lot plus VAT
- Any Consignment that has been delivered to the auction site and is withdrawn prior to or on the date of the Auction will be subject to a surcharge of £1000 per lot or 8% of the Reserve Price (whichever is highest) plus VAT.
- Payment of all sums due to the Auctioneer under this Agreement is due on the day of the Auction or (if any Lots are withdrawn prior to the Auction) on the day of withdrawal. This includes. Time for payment shall be of the essence. No payment shall be deemed to have been received by the Auctioneer until the Auctioneer has received cleared funds.
- If the Vendor fails to pay the Auctioneer any sum due pursuant to this Agreement the Vendor will be liable to pay interest to the Auctioneer on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
Reserved Auction
- The Vendor may place a Reserve Price on any Lot prior to the Auction and once placed by the Vendor may not be changed without the written consent from Dunn Bros SW Ltd
27.1 Reserve Prices shall be given in writing and the document containing the Reserve Price will be handed to the Auctioneer no later than 24hours prior to the Auction commencing.
27.2 Reserves will not be accepted or actioned on Lots valued below £100.00.
27.3 There is no obligation for a Vendor to place a reserve price on any Lots consigned to Auction
27.4 In the event that a reserve price is not provided by the Vendor in conjunction with Clause 25 the Auctioneer will without prejudice sell Unreserved
27.5 Where a Lot has been sold Unreserved due to the Vendors omission to provide a Reserve Price in conjunction with Clause 26 in no circumstances whatsoever can a Vendor refuse to accept a winning bid should it not reach a level and value deemed acceptable by the Vendor
27.6 Reserve Prices cannot be given and will not be accepted in retrospect
27.7 Reserve prices can be removed at the Auctioneers absolute discretion where a Lot has been entered into three consecutive Auctions and remains unsold. This provision shall be exercised where the reserve price given by the Vendor is deemed to be considerably higher than Auction Market Value in conjunction with Auction Trends.
- For the avoidance of all doubt, it is the sole responsibility of the Vendor to provide a Reserve Price for any Lot consigned in conjunction with Clause 27 and the Auctioneer shall not be liable for any perceived losses, claims or costs arising from its omission to obtain a Reserve Price from the Vendor
Provisional Bids & Aftersales
- The Auctioneer agrees to communicate any Provisional Bids to the Vendor where the Reserve Price is not reached as soon as is reasonably practicable. The Vendor will have a 48hour window starting from the point where the last Lot of the Auction is sold to accept the Provisional Bid amount before it is respectfully withdrawn. The Auctioneer shall not be liable for any perceived losses, claims or costs arising from its omission to relay the Provisional Bid to the Vendor
- Where the Provisional Bid is under reserve but is accepted by the Vendor, notice shall be provided to both the Vendor and Purchaser confirming the Sale as soon as reasonably practicable. Once accepted the Vendor may not withdraw from accepting the Highest Bid where an invoice has been issued
- The sale of Lots shall be treated as a normal sale under the terms and conditions of this Contract
- If the Vendor declines the Provisional Bid, the Auctioneer shall notify the prospective Buyer as soon as reasonably practicable and the Vendor may at its discretion re-enter the Lot for a subsequent Auction.
- If the Lot is not sold at Auction, the Auctioneer has the Vendor’s authority to sell the Lot at the Reserve Price, (or a lower figure with the Vendors prior agreement), during the Exclusivity Period unless the Vendor has informed the Auctioneer in writing that the Goods are not to be sold following an Auction. In this instance the Vendor has 21 days to collect unsold Lots where they are not to be sold following an Auction. The Vendor shall be liable to pay a storage charge of £10 per day per single Lot after the 21 day period expires. The Auctioneer shall be entitled to exercise a lien over the Goods until all outstanding storage charges and other sums due to the Auctioneer under the Contract are paid.
- The Exclusivity Period is without prejudice 14 days following an Auction and is intended to allow the Auctioneer to perform an Aftersale on the unsold Lot
- Collection of any unsold Lots within this Exclusivity period, will result in the Vendor being charged a fee not less than 8% of the Reserve Price given for Auction
- Where the Vendor rejects an Aftersale offer on an unsold Lot, which is equal to or greater than the Reserve Price a fee of £1000 per Lot or 8% of the Reserve Price per Lot (whichever is higher) plus VAT will be charged to the Vendor. Fee is payable before Lot can be removed from the Auction Site
- The Vendor authorises the Auctioneer to perform Aftersales on any Lot outside this Exclusivity Period which has been re-entered into a following Auction at its sole discretion
37.1 Where an Aftersale beyond the Exclusivity Period is concluded it will still be bound by the same Auction Terms and Conditions detailed herein
38. The Vendor authorizes and provides a license to the Auctioneer to use the Vendor's name, trademark or logo for the purpose of advertising and marketing the Auction.
38.1 The Vendor authorizes the Auctioneer to utilize any part of the Consignments in the marketing and conduct of the Auction.
Payment
- The Auctioneer shall not be obliged to release any funds to the Vendor for Lots sold until such time as the Auctioneer has received cleared funds from the Purchaser of such Lots or 28 days from the Auction Date whichever is the later subject to the provisions of Clause 29.
39.1 The Auctioneer reserves the right to withhold funds from this Sale to clear any outstanding Purchase Balance the Vendor may have from any other Dunn Bros SW Ltd Sale.
39.2 The Auctioneer at its discretion has the right to withhold payment to the Vendor where any costs arising from the Auctioneer facilitating the sale of any Lots entered including but not limited to those set out in Clause 15, 18 & 19
40. Where a Lot has been consigned and sold subject to finance or any other financial liability the Auctioneer shall be entitled to settle all outstanding balances with the respective finance companies prior to the release of any funds to the Vendor
40.1 Where the finance settlement is greater than the Hammer Price (plus vat) achieved at Auction, the Vendor will pay the difference to the Auctioneer who will then settle the outstanding balance in full with the finance company
- Where the Auctioneer has made payment of the proceeds of the auction of Lots to the Vendor in accordance with the terms of this Agreement, the Vendor agrees to assign, or procure to be assigned to the Auctioneer, for no consideration any and all rights and claims of the Vendor against the Purchaser in respect of the payment of the purchase price or any part thereof and the Vendor agrees to provide all reasonable assistance to the Auctioneer in respect of pursuit by the Auctioneer of any such claim against the Purchaser
- The Vendor agrees to provide bank details to the Auctioneer for payment of sale proceeds. The Auctioneer will use the bank details on file, unless advised by Vendor
Fundamentals
- This Agreement can only be amended or varied by written agreement between the parties and constitutes the entire agreement between the parties and overrides prior contracts or agreements or understandings between the parties in relation to the sale by Auction and ensures for the benefit of and is binding upon the heirs, executors, administrators, successors in title and assigns of the parties herein.
- The formation, existence, construction, performance, validity, and all aspects of this Agreement shall be governed by the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the Courts of England.