Fine Art - Sellers’ Conditions

CONSIGNMENT AGREEMENT

Thank you for choosing to sell your items through Tayler & Fletcher.

Please read this document carefully since it sets out the terms and conditions of your agreement with Tayler & Fletcher.

Please also note that if you, or someone acting on your behalf, consigns a Lot/s to us to sell at one of our auctions, this signifies that you agree to, and will comply with, the terms and conditions of this Consignment Agreement.

1. The Parties

The terms of this Consignment Agreement are between you (the consignor), whether owner or agent of the goods to be consigned and Tayler & Fletcher. No person other than the goods’ owner, their agent, the buyer and Tayler & Fletcher will have any rights to enforce any of the terms of this Consignment Agreement.

2. Jurisdiction

The terms of the Consignment Agreement and any dispute or claim arising out of or in connection with them (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.

3. Definitions

Agent – a person or persons authorised to act on the behalf of another; for the purposes of this Consignment Agreement, a person or persons authorised to sell goods on behalf of the goods’ owner

Auctioneer – Tayler & Fletcher or the partnership’s authorised auctioneer

Bidder – a person who places a bid

Buyer – the person who makes the highest bid accepted by the Auctioneer

Buyer’s Premium – the commission charged to the Buyer on the sale of the Lot/s in accordance with the Conditions of Sale

Conditions of Sale – the terms and conditions of sale for Bidders and Buyers at Tayler & Fletcher auctions

Consignment Agreement means this document

Consumer – an individual acting for purposes which are outside his/her trade, business, craft or profession

Deliberate Forgery – an imitation made with the intention of deceiving as to its authorship, origin, date, age, period, culture or source; which is described in the catalogue as being the work of a particular creator without qualification; and which at the date of the auction had a value materially less than it would have had if it had been as described.

Hammer Price – the highest bid for the Lots accepted by the Auctioneer by the fall of the hammer

Lot – the item or goods that you consign to us for sale at our auction

Price – the total of the Hammer Price, Premium and VAT

Proceeds – the Hammer Price less the Seller’s Premium, insurance, any expenses incurred to your account and VAT

Reserve – the minimum Hammer Price at which a Lot may be sold

Seller – the owner of the Lots; or their agent, who consigns the Lot/s for sale on behalf of the owner

Seller’s Premium – the commission that we charge you on the sale of the Lot/s as set out in Clause 7

Trader – a Seller who is acting for purposes relating to that Seller’s trade, business, craft or profession, whether acting personally or through another person such as an agent and/or the Auctioneer

‘We’ and ‘us’ – refer to Tayler & Fletcher or Tayler & Fletcher’s authorised Auctioneer

‘You’ and ‘your/s’ – refer to the Seller.

4. You and Your Agent’s Relationship with the Auctioneer

If the consignment of a Lot/s to us is made by an agent we assume that you, the owner of the Lots, have authorised the agent to do so. All obligations that apply to the Seller under this Consignment Agreement shall apply to the owner of the Lot/s and their agent, jointly and separately.

5. Consignment Procedure

1)  If you consign a Lot/s to us for sale at auction, we will require you to provide us with the following information in a form acceptable to us:

1. Proof of your identity and your address

2. Information about the Lot/s (as set out in Clause 14)

3. Your bank account details

4. Your contact details

5. Your VAT registration number (if registered)

6. Your status as a seller (Trader or Consumer).

2)  If we are not satisfied with any of the above information which you provide, or fail to provide, we may refuse your consignment for sale.
3)  You must provide the Lot/s to us by any stated deadline.

6.   Your Contractual Relationship with the Buyer  

1)  The contract between you and the Buyer will be formed when the hammer falls.
2)  You may directly enforce any terms in the Conditions of Sale against a Bidder and/or a Buyer to the extent that you have suffered damages and/or loss as a result of a Bidder’s and/or the Buyer’s breach of the Conditions of Sale.  
3)  If you breach terms of this Consignment Agreement, you may be responsible for damages and/or losses suffered by a Bidder, by a Buyer, and by us. If we are contacted by a Buyer and/or a Bidder who wishes to bring a claim against you, we may at our discretion provide the Buyer and/or Bidder with information or assistance in relation to their claim.
4)  We act as an agent only and will not have any responsibility for default by you or the Buyer.

7.  Seller’s Premium

We will charge you a commission, known as ‘Seller’s Premium’, on the sale of the Lots. It is calculated as a percentage of the Hammer Price on a sliding scale basis as follows:

For each lot selling for up to £5,000: 15% + VAT
For each lot selling for £5,001 or more: 15% + VAT on the first £5,000 and 10% thereafter.

8.  Insurance for Loss and Damage

1)  We will charge you 1.5% of the Hammer Price plus VAT for the insurance of your Lot/s.
2)  Subject to Clause 8.4, we accept liability for Lot/s from the time we take possession until the hammer falls
3)  Our liability for your Lots is limited to our presale lower estimate for the Lot/s before the sale, or to the Hammer Price if the lot has sold, or to the Reserve if the lot is unsold.
4)  The liability accepted by us in Clause 8.2 does not include any liability for loss or damage to the Lots that is caused by or results from:

1. any inherent vice or defect affecting the Lots;

2. acts of God, flood, drought, earthquake or other natural disaster;

3. acts of terrorism, civil commotion, riots or war; or

4. nuclear, chemical or biological contamination.

9.  Photography

You will pay for the cost of any photographs of your Lots produced for the auction Catalogue. We reserve the right to photograph all Lots unless you specifically request us not to. The copyright in such photographs will be owned by us, along with the text of the auction catalogue.

10.  Reserves

1)  Reserves must be reasonable and may not exceed our presale lower estimate for that lot. We may decline to offer Lots which, in our opinion, would be subject to an unreasonably high reserve (in which case the Lots carry the storage and insurance charges as set out in this Consignment Agreement).
2)  Once we have agreed a Reserve, this cannot be changed except by mutual agreement.
3)  Where a Reserve has been agreed, we may bid on your behalf up to one bid below the Reserve.
4)  We may sell Lots below the Reserve provided that we account to you for the same sale proceeds as you would have received had the Reserve been the Hammer Price.

11. ‘Auctioneer’s Discretion’

Lots may be offered subject to a Reserve agreed between you and us before the auction in accordance with Clause 10. If you specifically give us notice to do so, we may accept a bid of up to 10% below the formal Reserve. This is known as ‘‘auctioneer’s discretion’.

12. Electrical Items – Portable Appliance Testing

1)  You must test any (non-antique) electrical items that you wish to consign to us for sale using qualified external contractors. We will not accept any Lots that have not been (PAT) tested and certified as safe by an electrician
2)  If we notify you that we will not accept uncertified electrical Lots, you must remove such Lots promptly at your expense following such notification. If you do not collect the Lots within seven days of our written notice to do so, we may dispose of the Lots at your expense.

13.  Unsafe Lots

If in our opinion any of your Lots infringe safety regulations, we will not offer these Lots for sale. You must remove such Lots at your expense. If you do not collect such Lots within seven days of our written notice to do so, we may dispose of the Lots at your expense.

14.  Warranties and information about the Lots

1)  You must provide us with all relevant information relating to your Lot/s such as its provenance, export/import history, condition, attribution, authenticity et cetera
2)  In addition to the warranties implied by law, you warrant to us and the Buyer that:

1. any information that you provide in relation to the Lot/s is complete, correct and up-to-date

2. the Lot/s will match any description of the Lots that you provide to us

3. as far as you are aware, the main characteristics of the Goods set out in the auction catalogue (as amended by any notice displayed in the saleroom or announced by us at the auction) are correct

4. to the best of your knowledge, the Goods have been lawfully imported and lawfully and permanently exported as required by the laws of any country in which the Goods were located; required declarations upon the export and import  of the Goods have been properly made; and any duties and taxes on the export and import of the Goods have been paid

3)  you will pay all taxes and duties potentially due on the sale of the Lots. You must let us know promptly, and in any event before the auction, if you discover any of the information you have provided to us relating to the Lots is incorrect or incomplete and/or if the Lots do not match the description that you provided to us or the main characteristics of the Lots set out in the auction catalogue.
4)  Any information that you provide in relation to the Lots may form part of the contract between both of us and the Buyer, and you acknowledge that the Buyer may have a statutory right to reject the Lots if the information provided is incorrect.
5)  If we have to refund the price of any Lots to the Buyer due to the Lot being a deliberate forgery, you must within seven days, reimburse to us any proceeds that we have transferred to you for the Lot/s following receipt of our written notice requesting you to do so.

15.  Transfer of Ownership of the Lots

You warrant and undertake to us and the Buyer that you are the true owner of the Lots (or are properly authorised by the true owner to sell the Lots on the owner’s behalf) and you currently have and will have the right to sell the Lots to the Buyer with good and marketable title free of any third party rights or claims at the time when ownership of the Lots is to be transferred.

16.  Indemnity

You will indemnify and keep us fully indemnified against any and all liability, loss, damage, costs (including reasonable legal fees and any VAT in relation to such fees) and expenses which we may incur or suffer as a result of any breach of Clauses 14 or 15 by you or anyone acting on your behalf, including without limitation if we are required to refund the price of any Lots to the Buyer as a result of your breach of these clauses.

17.  Terms of Sale

You agree that the Lots will be sold to the Buyer in accordance with our Terms of Sale, a copy of which is displayed in the saleroom and printed in our auction catalogues.

18.  Authority to deduct Seller’s Premium (commission) and expenses and to retain Premium and interest

You authorise us to deduct our Seller’s Premium at the stated rate and all expenses incurred on your account from the Hammer Price, plus any applicable VAT. You consent to our right to charge the Buyer and retain beneficially the Premium plus any applicable VAT paid by the Buyer in accordance with our Conditions of Sale and any interest earned on the sale proceeds until the date of settlement.

19 Settlement

1. Provided that the Buyer has paid for the Lots, we will, usually within thirty days of the auction, pay the net sum due to the Seller by crossed cheque or by arrangement by bank transfer.

2. If the Buyer has not paid for the Lots, we will not submit payment to you. In this case no settlement will be made, but we will, however, discuss with you the legal rights that we may exercise in relation to a Buyer’s failure to pay.

3. You must notify us in writing if your bank account details change. We will not be responsible for any payments made to the incorrect bank account if this is because you have not provided us with the correct bank account details.

4. If we make payments to you in error, we may request reimbursement by sending you an invoice.

5. We may deduct any sums that you owe to us from the Proceeds.

20 Unsold and Withdrawn Items

1. If any of your Lots are unsold at auction, you authorise us to negotiate a sale by private treaty within a week of the auction. In this case you will pay to us the same charges as if such Lots had been sold at auction and, so far as appropriate, the terms of this Consignment Agreement will apply to any such sale.

2. In addition to Clause 20.1, we may, with your consent, reoffer unsold Lots at a future auction (or by private treaty thereafter as set out in Clause 20.1 above) but we may recommend a variation in estimates and/or Reserve . Where, in our opinion, Lots are unsaleable, we will notify you and you must collect such Lots from the saleroom within seven days of the date of our notice to do so. If you fail to collect such Lots promptly, we may charge you reasonable storage charges at a daily rate.

3. You will pay us a charge of 5 percent of the Reserve or, in the case of a Reserve not having been agreed, the lower estimate for the lot plus VAT on any Lots that are withdrawn from the auction after being catalogued and/or marketed by us prior to the auction in any way.

21 Withdrawal of Lots by us
We may, acting reasonably and at our discretion, at any time withdraw your Lots from our auction:

1. for legal, reputational or operational reasons (including if you fail to provide evidence to verify your identity or your title to the Lots to our satisfaction);

2. if we reasonably believe that you may be, or are about to be, in breach of a term/s of this Consignment Agreement; or

3. if we reasonably believe the Lots to be a Deliberate Forgery.

22 Warehousing

1. We have no liability for Lots that you deliver to our saleroom without sufficient sale instructions. We reserve the right to charge you a minimum warehousing charge of £2 per lot per day plus VAT.

2. We will notify you to ask you to remove any of your unsold or withdrawn Lots. Unsold and withdrawn Lots will be subject to the charges as set out in Clause 22.1 above if you do not remove them within seven days of the date of our notification requesting you to do so.

3. If you do not remove your unsold or withdrawn Lots within thirty days of the date of our notification we may either: sell such Lots and set off charges from any net proceeds of sale; or dispose of such Lots at your expense.

23 Our Liability to You

1. We will not be liable to you for any loss of opportunity or disappointment suffered as a result of participating in our auction.

2. Neither we, nor the Buyer, shall be responsible to you and you shall not be responsible to the Buyer or us for any other loss or damage that any of us suffer that is not a foreseeable result of any of us not complying with the Conditions of Sale or this Consignment Agreement. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen.

3. Subject to Clause 23.4, if we are found to be liable to you for any reason (including, inter alia, if we are found to be negligent, in breach of contract or to have made a misrepresentation) our liability will be limited to the Proceeds due for the Lots if sold or the Reserve if unsold.

4. Notwithstanding the above, nothing in this Consignment Agreement limits the liability of us or our employees or agents for:

   1. death or personal injury resulting from negligence (as defined in the Unfair Contract Terms Act 1977)

   2. fraudulent misrepresentation

   3. any liability which cannot be excluded by law.

24 Notices

1. All notices between you and us regarding these Terms of Consignment must be in writing and signed by, or on behalf of, the party giving it.

2. Any notice referred in Clause 24.1 may only be given delivered by hand, by First Class post or by email:

3. Notices must be sent to our Bourton-on-the-Water saleroom address or to both of these email addresses: [email protected] and [email protected].

4. Notices will be sent to you, at the last postal and/or email address that you have given to us

5. Notices will be deemed to have been received

   1. if delivered by hand, on the day of delivery

   2. if sent by First Class post, two business days after posting

   3. if sent by email, at the time of transmission unless sent after 17.00 GMT, in which case they will be deemed to have been received on the next business day

25 Data Protection

Any personal data in relation to you will be held and processed a in accordance with our current privacy policy, a copy of which is available on request.

26 General

1. Each of the clauses of this Consignment Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.

2. We may change the terms of our Consignment Agreement from time to time, without notice to you. Please read the terms of our Consignment Agreement carefully, as they may be different from the last time you read them.

3. Except as otherwise stated in the terms of the Consignment Agreement, each of our rights and remedies:

   1. are in addition to and not exclusive of any other rights or remedies under the terms of the Consignment Agreement or general law; and

   2. may be waived only in writing and specifically.

4. Delay in exercising or the non-exercise of any right under this Consignment Agreement is not a waiver of that or any other right. Partial exercise of any right under the Consignment Agreement will not preclude any further or other exercise of that right or any other right under the Consignment Agreement. Waiver of a breach of any term of this Consignment Agreement will not operate as a waiver of breach of any other term or any subsequent breach of that term.