For Buyer Terms and Conditions, see below
For Seller Terms and Conditions, click here
BUYER TERMS AND CONDITIONS
The following terms and conditions ("Terms") are the terms on which CA Global Partners t/a Kitplus Auctions (“CAGP”), (a limited liability company incorporated under the laws of England and Wales with company number: 09328203 and whose registered office is at Sagars Accountants Ltd, Gresham House, 5-7 St Pauls Street, Leeds LS1 2JG United Kingdom sells Equipment (defined below) at Auctions (defined below) or by means of Private Treaty Sales (defined below) and supersedes all other terms and conditions relating to the subject matter of these Terms. These Terms are the terms subject to which CAGP shall, either on its own behalf or as agent for the Vendor (defined below), sell Equipment to a Buyer (defined below) by way of Auction or Private Treaty Sale.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 8 AND THE BUYER SHOULD NOTE THAT:
· ALL EQUIPMENT IS SOLD ‘AS IS, WHERE IS’ (WITH ALL FAULTS, IMPERFECTIONS AND DEFECTS)
· NO GUARANTEES AND/OR WARRANTIES ARE PROVIDED BY CAGP IN RESPECT OF ANY EQUIPMENT
· IT IS THE BUYER’S RESPONSIBILITY TO INSPECT EQUIPMENT PRIOR TO BIDDING ON SUCH EQUIPMENT OR MAKING AN OFFER IN RESPECT OF SUCH EQUIPMENT
· ALL SALES ARE FINAL – NO EXCEPTIONS
· SALES MAY BE SUBJECT TO A BUYER’S PREMIUM (DEFINED IN THE SPECIFIC SALE TERMS, IF APPLICABLE), THE RATE OF WHICH WILL VARY FROM SALE TO SALE
· ALL AUCTIONS (DEFINED BELOW) ARE SUBJECT TO THE CONDITIONS, VALID IN THE COUNTRY, WHERE THE AUCTION TAKES PLACE
1. DEFINITIONS AND INTERPRETATION
1.1. The following words and phrases used in these Terms shall have the following meanings, except where the context clearly requires otherwise:
1.1.1. “Advertising Material” means brochures, pamphlets, advertisements and any other marketing material (in both electronic and printed format) used by CAGP to market and promote the Auctions and/or any Private Treaty Sale;
1.1.2. "Auction" means a public sale or online sale at which items of Equipment are being sold by CAGP, each such item of Equipment going to one of the competing bidders;
1.1.3. "Buyer" means any person, firm or auctioneer who agrees to purchase the Equipment by participating in an Auction and placing a winning bid or who makes an offer which is accepted by CAGP in respect of a Private Treaty Sale;
1.1.4. "Buyer’s Premium" means a percentage of the Hammer Price (specified in the Sale Specific Terms) which is added to the Hammer Price to make up the Purchase Price;
1.1.5. "Catalogue" means an online or printed document containing a description of the Equipment to be sold at an Auction or by way of a Private Treaty Sale;
1.1.6. "Data Protection " means the Data Protection as applicable in the Country where the Auction takes place or such other legislation which enacts or consolidates it (with or without modification);
1.1.7. "Equipment" means the assets in respect of which potential Buyers are invited to submit offers by means of placing bids at an Auction or in respect of a Private Treaty Sale;
1.1.8. "EU" means the European Union;
1.1.9. "Force Majeure Event" means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable and which affects the performance by a Party of its obligations under these Terms, including without limitation, strikes, lock-outs or other industrial disputes (excluding such party's own workforce), failure of energy sources or transport network, acts of God, international disputes, war, export or import limitations or embargos, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors;
1.1.10. "Hammer Price" means the amount offered by the Buyer and accepted by CAGP at Auction in respect of the relevant Equipment;
1.1.11. "Parties" means CAGP and the Buyer collectively and "Party" shall mean any one of them as determined by the context;
1.1.12. "Personal Data" means any personal information (such as name, address, telephone number, credit card details and copies of documents such as a driving license used for identification purposes) which the Buyer provides to CAGP when submitting a Registration Form to CAGP;
1.1.14. "Private Treaty Sale" means a sale (not by way of an Auction) of Equipment by CAGP where CAGP prepares descriptive details of the Equipment for sale and invites offers which CAGP may accept or reject;
1.1.15. "Proxy Bid" means a bid submitted by an employee of CAGP on a Buyer’s behalf and with the Buyer’s authority in circumstances where a Buyer is unable to participate in an Auction;
1.1.16. "Purchase Price" means the amount payable by the Buyer to CAGP in respect of the sale and purchase of the Equipment and shall consist of, in respect of sale at Auction, the Hammer Price plus the Buyer’s Premium and, in respect of a Private Treaty Sale, the price agreed between CAGP and the relevant Buyer;
1.1.17. "Registration Form" means the printed or online form the Buyer completes when registering for an Auction;
1.1.18. "Sale Specific Terms" means any terms published by CAGP on any of the Websites in respect of the sale of Equipment and, in respect of a sale by Auction, any terms made available at any Auction and which relate to the specific Auction mentioned in such terms and/or any other terms communicated to the Buyer or potential Buyer by CAGP from time to time which shall be incorporated into these Terms by reference;
1.1.19. "Third Party" means any person or entity other than the Parties;
1.1.20. "VAT" means value added tax or the equivalent or similar sales taxes applicable in the Country where the Auction and/or Private Treaty takes place
1.1.21. "Vendor" means, the vendor of the Equipment, where CAGP sells the Equipment as agent on the vendor's behalf or CAGP if it sells for its own account;
1.1.22. "Website(s)" means CAGP’S website located at www.CAGPind.com and any other websites used by CAGP for purposes of Auctions or in respect of a Private Treaty Sale.
1.2. The headings used in these Terms have been inserted for convenience only and shall not affect its construction or interpretation.
1.3. Words importing the singular include the plural and vice versa.
1.4. Words importing a gender shall include all genders.
1.5. Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.
1.6. In the event of a conflict between the provisions of these Terms and the Sale Specific Terms, the Sale Specific Terms shall take precedence.
2. APPLICABILITY OF THESE TERMS
These Terms as well as the “Sale specific Terms” apply to all Auctions and Private Treaty Sales facilitated and/or conducted by CAGP.
3. STATEMENTS RELATING TO THE EQUIPMENT
3.1. All statements relating to the Equipment put up for auction at an Auction or offered for sale by means of a Private Treaty Sale contained on the Websites, in any Catalogue or in any Advertising Material (such as statements relating to description, quality and condition) are qualified statements of opinions and should not be relied upon or construed as being representations or warranties.
3.2. It is the Buyer’s responsibility to inspect the Equipment and to satisfy itself on all matters affecting the Equipment, including the condition and description of the Equipment, its fitness and suitability for any particular purpose prior to bidding on such Equipment at an Auction or making an offer in respect of a Private Treaty Sale.
4.1. All offers of CAGP are subject to prior sale of the goods by CAGP to a third party.
4.2. No offer, whether oral or in writing, is binding to CAGP. CAGP has the right to withdraw any offer within five days after the purchaser has accepted such offer.
5. RISK AND TITLE
5.1. The risk in and to Equipment bought by the Buyer at an Auction shall pass to the Buyer on the ‘fall of the hammer’, but the legal and beneficial title in and to such Equipment shall remain with CAGP until the Buyer’s payment of the Purchase Price (together with any VAT and any other applicable tax) in accordance with clause 7 and has been received by CAGP in cleared funds.
5.2. The risk in and to Equipment bought by the Buyer by means of a Private Treaty Sale shall pass to the Buyer on the date on which the Private Treaty Sale is agreed between CAGP and the Buyer, but the legal and beneficial title in and to such Equipment shall remain with CAGP (or as the case may be, the Vendor) until the Buyer’s payment of the Purchase Price (together with any VAT and any other applicable tax) in accordance with clause 7 and has been received by CAGP in cleared funds
6. PROXY BIDS
CAGP may place Proxy Bids on behalf of a Buyer or potential Buyer at any Auction at the Buyer’s election.
7. PURCHASE PRICE, PAYMENT TERMS AND VAT (AND OTHER TAXES)
7.1. The Purchase Price shall consist of the Hammer Price plus the Buyer’s Premium (if applicable), or, in the event of Private Treaty Sales, the Purchase Price shall be the price agreed between CAGP and the relevant Buyer in respect of such Private Treaty Sale.
7.2. CAGP may levy a Buyer’s Premium on all sales at Auctions and the rate of such Buyer’s Premium will vary from sale to sale.
7.3. The Purchase Price does not include VAT and other taxes (if any). Any VAT (or other taxes if any) relating to a sale shall be payable at the current rate(s) applicable in the country of supply and at the rate in force at the time of supply where the sale takes place. In respect of VAT and any other taxes (if any) the following shall apply (please see important information below for intra EU dispatches and exports purchasers where the Equipment in question is removed from the EU)
7.3.1. Buyers located in the country of supply and where the Equipment remains in that country will be charged VAT and other taxes (if any) on the Purchase Price, and for sales at auctions local VAT (and other taxes if any) will be levied on the Hammer Price and Buyers Premium.
7.3.2. Buyers located in another country other than the country of sale but located within the EU must complete documentation or be able to support that there is an intra-EU dispatch and if necessary complete an intra-EU form. A deposit equal to the amount of the VAT payable in the country of supply will be taken from the Buyer and held by CAGP until satisfactory proof of intra-EU dispatch is received by CAGP. Where a Buyer removes the Equipment from the country of supply to another EU state then proof of removal will include full shipping documents, proof of transport certification, or any other shipping documentation required by the EU Member State of dispatch to satisfy the intra-EU supply rules for goods including the evidence of a VAT ID number in another EU state to that of the country of supply. This documentation must be received by CAGP within three (3) months from the date of the supply.
7.3.3. Buyers who are established outside the EU will be charged VAT (and other taxes if any) on the Purchase Price. A refund of the VAT applied in the country of supply can be processed by sending proof of removal of the Equipment from the EU as an export (and this will include shipping documents) to CAGP within three (3) months from the date of the supply.
7.4. The intra EU forms and proof of export documents (including full shipping documents) required under clause 7.3.3 should be sent to CAGP via regular email to Samantha Shanks (email@example.com) or by fax +44 (0) 345 163 0589 or to such other person as CAGP may notify the Buyer from time to time.
7.5. Buyers wishing to claim an exemption from VAT (or that VAT is to be charged at zero rate or is otherwise not payable (either at all or at the full rate or amount prevailing at the time of the sale)) should provide satisfactory proof to CAGP of the Buyer’s entitlement to claim such exemption or release.
7.6. The Purchase Price should be paid by means of electronic funds transfer (EFT). The bank details and the currency in which payment should be made shall be specified in the Sale Specific Terms.
7.7. Time for payment shall be of the essence and any items of Equipment in respect of which full payment (in cleared funds) has not been received by CAGP within ten (10) days of the closing of the relevant Auction or the date of the Private Treaty Sale shall be forfeited and the Buyer shall be liable for the administrative and other costs of CAGP for arranging for the resale and/or scrapping of such Equipment and any resulting loss of fees or commission or premium incurred or suffered by CAGP.
7.8. No payment shall be deemed to have been received until CAGP has received the relevant payment in cleared funds.
7.9. The Buyer shall make all payments due under these Terms in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.10. If the Buyer fails to pay CAGP any sum due pursuant to the Buyer purchasing any Equipment at an Auction or by way of Private Treaty Sale, the Buyer shall be liable to pay interest to CAGP on such sum from the due date for payment at the maximum allowable annual rate accruing on a daily basis until payment is made, whether before or after any judgment.
8. WARRANTIES AND LIMITATION OF LIABILITY
8.1. International Statutory Compliance Exclusion (A)
It is expressly brought to the Buyer’s attention that, at the time of sale, any item of plant, machinery or equipment contained in the lot(s):
may not necessarily comply with the Health and Safety Laws, in the relevant jurisdiction and or any other EC Acts, Regulations, Directives or their applicable laws or equivalent or similar laws in any relevant jurisdiction or;
and could contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which if not handled correctly during their removal from a site could be in breach of the relevant Health and Safety Laws, use of such substances in a working environment in the EC or any other relevant jurisdiction.
The Buyer undertakes to:
Remove, ship and use any purchased plant and equipment within the European Community or any other relevant jurisdiction in a way that does not contravene any relevant legislation and in full compliance with all applicable Health and Safety Standards and regulations; comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by the Auctioneer in relation to the removal/disposal of waste including hazardous waste.
Participants agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation.
Participants acknowledge that the Auctioneer is not the exporter of any asset unless expressly stated.
The Auctioneer gives no representation or warranty concerning and has not conducted any investigation to ascertain which items, if any, constitute, for example, “Restricted Technology” for US law purposes or whose export is otherwise restricted under applicable law. The Auctioneer and the seller reserve the right to cancel or rescind any sale in an Online Transaction at any time if either of them determines. In its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations.
8.2. Buyers Responsibilities and Conduct
The Buyer will be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and, in particular, to the seller’s premises) in removing the lot(s) it has purchased. Should the Auctioneer consider such damage likely to occur, it may require the Buyer to deposit such sum of money with the Auctioneer, by way of security for the costs of reinstating that part or the premises likely to be damaged by the removal of a lot, as the Auctioneer may refuse the Buyer access to the seller’s premises for the purpose of collecting all or any of the lots it has purchased, or rescind the sale of such lot.
By placing a Bid on a lot, the Buyer represents, warrants and undertakes that it has the authority and capacity to enter such Bid and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid.
8.3. Transfer of Risk
Upon the Announcement of Sale the Buyer shall assume all risks in and relating to such lots. The Buyer is advised to effect in respect of all such risks arising thereafter any insurance it may consider necessary. The duty of the Auctioneer and/or the seller to make lots available shall be deemed performed upon Announcement of Sale even if a lot is subsequently damaged and/or part thereof has been lost.
Property and title in each lot shall not pass to the Buyer until:
(a) full payment therefore has been received or
(b) each such lot has been removed from the seller’s premises in its entirety.
8.4. AS IS / WHERE IS
All goods are sold “AS IS, WHERE IS, WITH ALL FAULTS, IMPERFECTIONS, DEFECTS AND WITHOUT RECOURSE”. Illustrations,
pictures or videos posted on the Site are for the convenience of the Buyers only.
Each of the seller, the Auctioneer and, where applicable, CAGP has used its reasonable endeavors’ to ensure that the description of each lot(s) appearing on the Site are accurate, but the Buyer replies upon such description at its own risk. Buyers should satisfy themselves prior to the sale as to the condition of the lot and should exercise and rely on their judgment as to whether the lot accords with its description at their own risk.
Subject to the obligations accepted by CAGP and where applicable, the Auctioneer under these Terms and Conditions neither the seller nor CAGP nor, where applicable, the Auctioneer nor any of their respective employees or agents are responsible for errors of description or for the genuineness or authenticity of any lot and no warranty whatever is given by CAGP or, where applicable, the Auctioneer, or the seller of their respective employees or agents to the Buyer in respect of any lot and any express or implied conditions or warranties are hereby excluded to the greatest extent permitted by law.
9. REMOVAL OF EQUIPMENT
9.1. It is the Buyer’s responsibility to collect or to arrange for the collection of Equipment bought (at the Buyer’s cost).
9.2. The Buyer should contact the individual whose name and contact details are provided in the Sale Specific Terms to arrange for the collection of Equipment.
9.3. CAGP shall only release Equipment for collection by a Buyer or its duly authorized representative once such Equipment has been paid for in full and CAGP has received such payment in cleared funds.
9.4. The Buyer must make payment of the Purchase Price on receipt of CAGP’S invoice. Invoices relating to purchases made via the Websites will be emailed to the Buyer within forty eight (48) hours of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale.
9.5. Unless stated otherwise in the Sale Specific Terms, the Buyer shall collect or arrange for the collection of the Equipment purchased within ten
(10) days of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale, after which CAGP shall be entitled to charge to the Buyer the cost of storing and securing such Equipment. The Buyer agrees to advise CAGP of the intended date for collection and method of collection and transport prior to collecting the Equipment.
9.6. The dismantling and removal of Equipment by the Buyer shall comply with the Health and Safety Laws, applicable in the Country where the Equipment is located, if applicable, together with CAGP’S site safety policies and procedures. After the dismantling and removal, the Buyer shall ensure that the site where the Equipment is located is left clean and in the state it was in prior to the dismantling and removal of the Equipment by the Buyer.
9.7. Certain types of Equipment may contain hazardous materials (such as chemicals) and, on his own account, the Buyer must ensure that the removal of such hazardous materials is carried out in accordance with the Health and Safety Laws, applicable in the Country where the Equipment is located and any other relevant legislation and/or regulations dealing with the removal and handling of such hazardous materials.
9.8. The Buyer shall indemnify and shall keep CAGP indemnified against all liabilities, damages, costs, expenses, death and personal injury arising from or in the course of the removal of the Equipment.
10. INTELLECTUAL PROPERTY
The copyright in the text appearing on the Websites, in any of our Catalogues, Advertising Material and the photographs, digital images and illustrations of Equipment on the Websites, in any of our Catalogues and in any Advertising Material vest in and shall remain vested in CAGP or its licensors. The Buyer will not reproduce or permit anyone else to reproduce such text, photographs, digital images or illustrations without CAGP’S prior written consent.
11. DATA PROTECTION
11.1. CAGP collects Personal Data from the Buyer when the Buyer submits a Registration Form to CAGP, or, if a Buyer generally provides Personal Data to CAGP in the course of doing business with CAGP.
12. REGISTRATION AND ACCESS TO THE WEBSITES
12.1. While CAGP Endeavour’s to ensure that the Websites are normally available 24 hours a day, CAGP shall not be liable if for any reason the Websites are unavailable at any time or for any period. Access to the Websites may be suspended temporarily and without notice in the case of system failure, maintenance or repair, or for reasons beyond CAGP’S control.
12.2. Each registration by a Buyer as a registered user on the Websites is for a single user only. CAGP does not permit a Buyer to share a user name and password with any other person nor with multiple users on a network.
12.3. Responsibility for the security of any passwords issued rests with the Buyer.
12.4. In consideration of the Buyer’s use of the Websites, the Buyer agrees to maintain the security of the password and identification used to access the user area of the Websites, and the Buyer shall be fully responsible for all use of the Buyer’s account and for any actions that take place using the Buyer’s membership account.
13. FORCE MAJEURE EVENT
Save for the Buyer’s obligation to make payment under these Terms (which shall not be excused), neither Party shall be liable for any failure or delay in performing its obligations under these Terms to the extent that such failure or delay is caused by a Force Majeure Event.
A waiver (whether express or implied) by one of the Parties of any of the provisions of these Terms or of any breach of or default by any other Party in performing any of those provisions, will not constitute a continuing waiver and that waiver will not prevent the waiving Party from subsequently enforcing any of the provisions of these Terms not waived or from acting on any subsequent breach of or default by any other Party under any of the provisions of these Terms.
The provisions contained in each clause and sub-clause of these Terms is enforceable independently of each of the others and its validity will not be affected if any of the others is invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it valid.
16. WHOLE AGREEMENT
These Terms (together with any other documents referred to herein and referenced as forming part hereof), contain the whole agreement between the Parties relating to the subject matter contemplated by these Terms.
17. RULES AT AUCTION
The Auctioneer can at its own discretion:
17.1. Change or withdraw any or all lots.
17.2. Bid for any lot(s) offered for the sale at the Online-Auction on its own account and or on behalf of third parties, including on behalf of the seller.
17.3. Sell lots in combination, subdivide a lot(s) or change lot(s).
17.4. Withdraw any lot(s) if the reserve price, placed on that lot, has not been reached.
17.5. CAGP and or any CAGP related company may act as the seller in any Online Auction.
17.6. Temporarily or permanently stop the Online-Auction.
17.7. Refuse to accept any Bid, including Autobids, for any reason and without any explanation to the bidder.
18. ARTIST’S RESALE RIGHTS (ARR)
Certain lots within the sale may be subject to the Droit de Suite or Artist's Resale Rights (ARR), which took effect in the United Kingdom on 14th February 2006. CAGP are required to collect a royalty payment for all qualifying works of art. Under new legislation which came into effect on 1st January 2012 this applies to living artists and artists who have died in the last 70 years. This royalty will be charged to the Buyer on the hammer price and in addition to the Buyer’s premium. It will not apply to works where the hammer price is less than €1,000 (euros).
The charge for works of art sold at and above €1,000 (euros) and below €50,000 (euros) is 4%. For items selling above €50,000 (euros), charges are calculated on a sliding scale. All royalty charges are paid to the Design and Artists Copyright Society (‘DACS’) and no handling costs or additional fees are retained by the auctioneer. Resale royalties are not subject to VAT. Please note that the royalty payment is calculated on the rate of exchange at the European Central Bank on the date of the sale. More information on Droit de Suite is available
19. IMPORTANT INFORMATION FOR EXPORT PURCHASERS
If you are intending purchasing items for export outside the Country where the Items (Equipment/Lots) are located, YOU MUST satisfy all of the following criteria in order for a VAT refund/zero rating to be considered.
19.1. Export Forms:
• The registered purchaser must complete the appropriate form showing the export destination and address.
• The registered Buyer must be the party who is to receive the goods overseas and NOT their agent.
19.2. VAT Deposit:
A deposit equal to the amount of VAT due will be taken and held by CAGP until satisfactory proof of export is received (NO EXCEPTIONS).
19.3. Time Limit:
Goods must be exported and documentary proof provided within three months from the date of purchase. NO REFUNDS WILL BE GIVEN AFTER THIS PERIOD.
19.4. Proof of Export:
• Bills of Lading / fully completed CMR documents together with a letter of declaration must be forwarded to CAGP within three months of the date of purchase.
• Bills of Lading / fully completed CMR documents must specify the goods with reference to lot numbers and description, and/or the purchase invoice reference number.
• Consignee details on the Bill of Lading must match those of the registered Buyer on our registration form.
20. GOVERNING LAW AND JURISDICTION
These Terms are governed by and will be construed in accordance with English law. Each Party irrevocably submits to the exclusive jurisdiction of the English Courts for all purposes relating to these Terms.
21. Prevailing Text
21.1. The English text of these general terms and conditions prevails over any translations thereof.
SELLER TERMS & CONDITIONS
- CA Global Partners Ltd, trading as "KitPlus Auctions" (registered in England and Wales with Company No. 09328203) whose registered office is C/O Sagars Accountants Ltd, Gresham House, 5-7 St. Pauls Street, Leeds, West Yorkshire, LS1 2JG (“CAGP”); and
- Your company (“the Seller”).
- The Seller wishes to dispose of assets by way of online auction or otherwise.
- The Seller wishes to engage CAGP on an exclusive basis to dispose of such assets on the terms and conditions set out in this Agreement.
IT IS AGREED AS FOLLOWS:
- DEFINITIONS AND INTERPRETATION
- This Agreement shall constitute the binding agreement between the parties.
- In this Agreement, the following terms shall have the meaning set out opposite them below, unless the context otherwise requires:-
- “Applicable Data Protection Laws” means:
(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) to the extent the EU GDPR applies, the law of the law of the European Union or any member state of the European Union to which CAGP is subject, which relates to the protection of personal data.
- “Buyer” any third party buyer of a Sale Asset pursuant to a Sale;
- “Buyer’s Premium” the percentage premium due to CAGP as part of the remuneration for its services in the disposal of each Sale Asset at the rate set out in this Agreement;
- “Commencement Date” the date this Agreement was accepted;
- “Commission” the agreed commission rate percentage of the gross Sale proceeds set out in the Sale Order;
- “EU GDPR” the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law.
- “Online Sale Date” the date set out in the relevant Sale Order;
- “Sale” the sale to a Buyer of a Sale Asset by online auction or negotiated sale pursuant to this Agreement and the relevant Sale Order; and
- “Sale Assets” the assets as detailed in the Sales Order; and
- “Sale Order” the order to be agreed between the parties in respect of each Sale setting out (without limitation) the Sale Assets, Buyer’s Premium, Commission, Online Sale Date, Seller Bank Account Details (to receive payment into) and period during which CAGP will be authorised to undertake the marketing and sale of the Sale Assets for each Sale which may be in either hard copy or electronic format or which may be an exchange of emails between the parties provided that such format or exchange sets out the details listed above.
- “Seller Personal Data” any personal data which CAGP processes in connection with this agreement, in the capacity of a processor on behalf of the Seller.
- “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
- APPOINTMENT & CONDUCT OF SALES
- The Seller appoints CAGP as exclusive sale and marketing agent for the disposal of the Sale Assets, owned by the Seller and CAGP hereby accepts such appointment, upon the terms set out in this Agreement.
- The Seller authorises CAGP to use the services and technology of any of CAGP’s affiliated companies to market, sell and invoice the Sale Assets.
This Agreement shall commence on the Commencement Date and continue for a period of 3 months after which it may be terminated by either party on the giving of 1 notice to the other (the “Term”).
- SALE OF ASSETS
- From time to time during the Term the Seller shall notify CAGP of its intention to dispose of any Sale Assets and upon such notification the parties shall use their respective reasonable endeavours to agree the provisions for insertion in, and shall thereupon execute, a Sale Order in relation to such assets.
- Except as otherwise provided in any Sale Order the sale of the applicable Sale Assets shall be governed by the terms of this Agreement.
- SELLER’S OBLIGATIONS
- In consideration of CAGP selling the Sale Assets on the Seller’s behalf, the Seller shall:-
- pay the Commission plus VAT on the Sale Assets;
- provide accurate descriptions and illustrations, pictures or videos of the Sale Assets for upload onto the relevant website of sufficient quality and size for online use;
- provide detail of the condition of the Sale Assets and disclose any known faults, missing parts or damage to them;
- provide suggested reserve prices which shall be agreed with CAGP;
- be responsible for securing and insuring the Sale Assets and arranging inspection of the Sale Assets for any prospective Buyer;
- be responsible for keeping and maintaining the Sale Assets in the same condition as when the pictures or videos were taken and / or the Sales Assets were inspected by any prospective Buyers;
- be responsible for making the Sale Assets ready for collection by the Buyer following the auction, including reasonable packaging given the nature of the Sale Assets unless the relevant Sales Order states otherwise;
- be responsible for disconnecting the Sale Assets;
- maintain adequate Health & Safety policies and procedures at the site of the Sale Assets and communicate such policies and procedures to Buyers and CAGP as necessary;
- be responsible for ensuring that each Sale Asset has been made safe, purged and drained of any toxic or potentially hazardous substances;
- maintain adequate insurance and security of the Sale Assets and any site on which the Sale Assets are located (including any buildings on such sites) and adequate public liability insurance;
- not allow any Sale Asset to be removed from the Site, unless CAGP has confirmed to the Seller that full payment has been received for such Sale Asset; and
- accept invoices raised by CAGP on its behalf, and notify CAGP immediately of any change in the Seller’s VAT registration number, the Seller ceasing to be VAT registered or the Seller selling their business (or part of their business).
- SELLERS UNDERTAKINGS
- The Seller hereby represents, warrants and accepts that:-
- the Seller is authorised to execute and perform this Agreement, and this Agreement constitutes a legally binding obligation of the Seller, enforceable in accordance with these terms;
- the Seller holds and will on request from CAGP provide evidence to prove it holds (and, until and at the time of any Sale or other sale provided for under this Agreement, will hold) good and marketable title to the applicable Sale Asset free and clear of any lien, charge, security interest, leasehold interest, co-ownership interest or any other type of encumbrance or interest and the Seller is able to sell and/or transfer the Sale Asset and deal with the proceeds of its Sale without the consent of any third party;
- no Sale Assets infringe or violate (or contain any parts or components which infringe or violate) any third party’s intellectual property rights; and
- no Sale Assets or any components thereof, or any related software or technology requires a licence from the government of the country in which the Sale Assets are located except those specifically listed in writing by the Seller to CAGP.
- Subject to clause 6.3 and without prejudice to any other rights or remedies CAGP may have, if the Seller withdraws from sale and/or itself sells, or arranges for the sale by a third party, any of the Sale Assets during the term of this Agreement, then unless agreed otherwise in the relevant Sale Order the Seller shall pay to CAGP the Commission and the Buyer’s Premium based on the greater of (i) the reserve price agreed between the parties; or (ii) if no reserve price had been agreed, CAGP’s reasonable estimate of realisation; or (iii) the actual sale price achieved.
- The Seller acknowledges and agrees that it may not withdraw a Sale Asset from sale where an online auction in relation to such Sale Asset is in progress.
- The Seller hereby expressly consents to CAGP entering bids on the Seller’s behalf up to (but not including) the reserve price (if any) on any Sale Assets in any auction conducted pursuant to this Agreement. The Seller agrees that it will not enter, or instruct any third party to enter, any bids on any Sale Assets in any auction conducted pursuant to this Agreement other than in accordance with the preceding sentence.
- The Seller hereby undertakes to defend and indemnify CAGP and hold CAGP harmless from and against any claim, demand, cause of action, liability, expense (including legal fees), costs and any other losses and/or liabilities asserted against or incurred by CAGP in connection with the Seller’s breach of any of its representations, warranties or obligations in this Agreement or otherwise in connection with the sale or purported sale of the Sale Assets (save to the extent such claim is due to CAGP’s breach of this Agreement or CAGP’s negligence or wilful default).
- CAGP OBLIGATIONS
- In consideration of its appointment as exclusive sale and marketing agent on behalf of the Seller, CAGP shall:-
- organise the sale of all Sale Assets;
- invoice the Buyer and collect all money for the Sale Assets sold, including any VAT and account to the Seller at the conclusion of each Sale; and
- collect and retain the Buyer’s Premium.
- CAGP shall not be responsible for disconnecting, loading or transporting the Sale Assets.
- EXCLUSION OF WARRANTIES
- CAGP shall state both in its advertising, and at the time of each Sale, that the Sale Assets are being sold “as is, where is”.
- CAGP shall exclude (so far as the law permits) all warranties as to the quality or condition of the Sale Assets or their fitness for any particular purpose.
- The Seller agrees to defend (by instructing legal advisers satisfactory to CAGP) and indemnify CAGP and hold CAGP harmless from and against:-
- any claim or liability asserted against CAGP by any third party (including any Buyer) based on the alleged existence, or breach, of any alleged warranties; and
- from and against any fees or expenses (including legal fees) incurred by CAGP in defending itself against any such claim or liability.
- CAGP offers no guarantee that the disposal of any Sale Assets will be successfully completed.
- CAGP shall not be liable to the Seller in the event that a Buyer of any Sale Asset fails to comply with the terms of the purchase agreement.
- CAGP provides no warranty, representation or guarantee in respect of any error or interruption of the online sale process.
- COMMISSION AND BUYER’S PREMIUM
- CAGP shall receive Commission on each Sale of a Sale Asset.
- CAGP shall further be entitled to charge a Buyer’s Premium on the Sale to a Buyer of a Sale Asset.
- Any additional expenses to be charged by CAGP shall be set out in the relevant Sales Order.
- Data Protection
- For the purposes of this clause 10, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
- Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
- The parties have determined that for the purposes of Applicable Data Protection Laws CAGP shall process the personal data as processor on behalf of the Seller.
- Without prejudice to clause 10.2, the Seller will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Seller Personal Data to CAGP for the duration and purposes of this agreement.
- In relation to the Seller Personal Data, the Schedule sets out the scope, nature and purpose of processing by CAGP, the duration of the processing and the types of personal data and categories of data subject.
- Without prejudice to clause 10.2, CAGP shall, in relation to Seller Personal Data:
- process that Seller Personal Data only on the documented instructions of the Seller unless CAGP is required by Applicable Laws to otherwise process that Seller Personal Data (Purpose). Where CAGP is relying on Applicable Laws as the basis for processing Seller Processor Data, CAGP shall notify the Seller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Seller on important grounds of public interest. CAGP shall inform the Seller if, in the opinion of CAGP, the instructions of the Seller infringe Applicable Data Protection Laws;
- implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Seller Personal Data and against accidental loss or destruction of, or damage to, Seller Personal Data, which the Seller has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- ensure that any personnel engaged and authorised by CAGP to process Seller Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
- assist the Seller insofar as this is possible (taking into account the nature of the processing and the information available to CAGP), and at the Seller's cost and written request, in responding to any request from a data subject and in ensuring the Seller's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Seller without undue delay on becoming aware of a personal data breach involving the Seller Personal Data;
- at the written direction of the Seller, delete or return Seller Personal Data and copies thereof to the Seller on termination of the agreement unless CAGP is required by Applicable Law to continue to process that Seller Personal Data. For the purposes of this clause 10.6.6, Seller Personal Data shall be considered deleted where it is put beyond further use by CAGP; and
- maintain records to demonstrate its compliance with this clause 10.
- The Seller provides its prior, general authorisation for CAGP to:
- appoint processors to process the Seller Personal Data, provided that CAGP:
- shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on CAGP in this clause 10;
- shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of CAGP; and
- shall inform the Seller of any intended changes concerning the addition or replacement of the processors, thereby giving the Seller the opportunity to object to such changes provided that if the Seller objects to the changes and cannot demonstrate, to CAGP's reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Seller shall indemnify CAGP for any losses, damages, costs (including legal fees) and expenses suffered by CAGP in accommodating the objection.
- transfer Seller Personal Data outside of the UK as required for the Purpose, provided that CAGP shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Seller shall promptly comply with any reasonable request of CAGP, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
- Either party may, at any time on not less than 30 days' notice, revise this clause 10 (Data protection) by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
- LIMITATION OF LIABILITY
- Neither party shall have any liability to the other party under this Agreement for any matters which are outside its reasonable control.
- Neither Party shall have any liability to the other party under this Agreement for any consequential losses; loss of profits and/or damage to goodwill; special damages and indirect losses; loss and/or corruption of data; and/or business interruption, loss of business, contracts, opportunity and/or production.
- CAGP’s total liability to the Seller under this Agreement shall not exceed the aggregate amount actually received by CAGP by way of Commission and/or Buyer’s Premium in relation to Sales made pursuant to this Agreement.
- Nothing in this Agreement shall exclude or limit CAGP’s liability for death or personal injury due to its negligence or any liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
- CAGP shall not be liable for any loss, damages or costs suffered by the Seller in the event that the Seller either withholds or conceals or fails to disclose material information in relation to the Sale Assets to the Buyer or in the event that any such information is either misrepresented to the Buyer or is incomplete or inaccurate.
- CONFIDENTIAL INFORMATION
Each party agrees with the other that it will keep all business information regarding the other party confidential and not disclose or use such information without the other party’s prior written consent.
Without prejudice to any other rights to which it may be entitled under this Agreement, either party shall have the right at any time to terminate this Agreement immediately by giving written notice to the other in the event that:-
- the other party has committed a material breach of any of its obligations under this Agreement and does not remedy such breach (if the same is capable of remedy) within fourteen (14) days of being required by written notice so to do;
- the other party suspends or threatens to suspend payment of its debts or is deemed for the purposes of any applicable law to be unable to pay its debts as they fall due;
- a meeting of such party is convened for the purpose of considering any resolution for (or to petition for) its winding-up or its administration or any such resolution is passed, or any person presents a petition for the winding-up or for the administration of such party or any order for the winding-up or administration of the party is made or a Notice of Intention to Appoint an Administrator is filed at court or any other step (including petition, proposal or convening a meeting) is taken with a view to the rehabilitation, administration, liquidation, winding-up or dissolution of such party or any other insolvency or moratorium proceedings involving the other party;
- the other party otherwise becomes subject to the insolvency laws in any jurisdiction;
- the other party ceases or threatens to cease to carry on business; or
- there is a change of control of the Seller (as defined under Section 416 of the Income and Corporation Taxes Act 1988).
- CONTRACT RIGHTS OF THIRD PARTIES
None of the terms of this Agreement shall be relied upon or be enforceable under the Contract (Rights of Third Parties) Act 1999 by any third party who is not party to this Agreement.
- GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, English Law and the parties hereby submit to the exclusive jurisdiction of the English courts.
Schedule – Processing, Personal Data and Data Subjects
Particulars of processing
Processing of Personal Data for the purpose of facilitating the sale of Sales Assets under the Sales Agreement.
- Nature and Purpose of processing
The collection, organisation, storage, use, disclosure by transmission, making available, erasure or destruction of data (whether or not automated) of Personal Data for the purpose of facilitating the sale of the Sales Assets, including arranging inspections by Buyers and the collection of Sale Assets by Buyers.
- Duration of the processing
For the duration of the Sales Agreement.
- Types of personal data
Full name, email address and contact telephone numbers.
- Categories of data subject
Employees of the Seller.