The Conditions of Business are made in accordance with the Auction Law of the People's Republic of China, other relevant laws implemented in the People's Republic of China, regulations of the People's Republic of China and the Articles of Association of the Company with reference to international conventions. Both the Bidder and the Seller shall read carefully the following detailed regulations and be responsible for his actions while carrying out these regulations. Special problems and unwritten matters not mentioned in this document shall be explained and handled by the Auctioneer in accordance with the principles of these regulations. Contentious law problems shall be settled in accordance with the laws and regulations of the People's Republic of China.
Part I Main Stipulations for the Bidder and the Buyer
1. The Bidder and the Buyer
(1) The Bidder refers to any citizen, legal person/corporate or any organization that registers and bids at the Auctioneer's.
(2) The Buyer shall be the highest Bidder approved by the Auctioneer.
(3) The Bidder shall keep the paddle registered at the Auctioneer's property properly and bear the liability for any consequences caused by any other's bidding under the Bidder's paddle.
(4) Before the auction the Bidder shall complete and sign a registration form with his own valid Identification Card, Passport or other valid identity certificates, and shall get a bidding paddle. If the Bidder is a legal person or an organization, the Bidder shall fill in and sign a registration form with the valid Business License, the legal person's Identification Card or legal authorization letter and get a bidding paddle before the auction.
(5) The Bidder shall get a bidding paddle after paying the Auctioneer deposit as required in Notice to the Bidder in the Catalogue, unless otherwise agreed by the Auctioneer and the Bidder. After the auction, those who fail in bidding and do not owe money to the Company may get back their deposit with no interests within 12 working days. The Buyer shall pay the total price of the auction article in full and take away the lot within 7 days after the successful bidding. The deposit already paid by the Buyer shall be deducted as part of the total purchase price. If the Buyer fails to pay the amount in full within 7 days, the Auctioneer shall confiscate the deposit at the Auctioneer's and pursue the Buyer's liability.
(6) The entrance of the Bidder into the auction hall shall imply that he shall abide by this document and other regulations of the Auctioneer.
(7) The Bidder will raise his paddle on the premise that he agrees with the bidding increment. Any bid lower than the increased price shall be refused, except when the auction specialist of the Auctioneer adjusts the price on the spot.
(8) The Bidder shall be responsible for his bid at any price, once the bidding is confirmed as successful after the Auctioneer hammers down or declares the sale valid in other open ways. The highest bidder shall sign a confirmation order for the deal on the spot and he shall never pull back, otherwise he shall be legally responsible for his bid.
2. Trust bid
(1) The Bidder shall take part in the auction himself. If it is impossible for him to be present at the auction, he shall trust the Auctioneer as his agent, but the Auctioneer shall not be responsible in case that the bidding is unsuccessful or the agent makes mistakes or neglects his duties in the course of bidding. If there are two or more bidders offering the same trust price, the one who reaches the Auctioneer first shall prevail.
(2) The Bidder who intends to trust the Auctioneer as his agent to bid shall sign a valid written authorization bid order and submit it to the Auctioneer to pay the deposit no late than 24 hours before the auction date. The Bidder shall pay off the rest within 7 days after the auction.
(3) The Bidder is permitted to trust other persons to bid and will be responsible for the trustee's bidding at the Auctioneer's. The Bidder registered at the Auctioneer's will be held responsible for the bidding and its result if others bid under the Bidder's paddle regardless of being confirmed by the Bidder or not.
(4) If the Bidder trusts the Auctioneer and other entrusted persons to bid, he shall be bound by the Conditions of Business and responsible for the bidding results. The Bidder shall bear the liability resulting from the bidding by the Auctioneer's staffs and other entrusted persons.
3. Caption or photo to an auction catalogue
(1) The captions, photos and introductions provided by the Auctioneer are not a formal publication, but a notice on the forthcoming auction. Parties involved are bound by the Conditions of Business.
(2) Statements of the auction article on the catalogue or in other forms regarding its author, origin, date, history, size, material, mount, ownership, authenticity, source, condition, estimated price or artistic value are for the Bidder's reference only. It is not a guarantee by the Auctioneer.
(3) If there is any difference in color, light and shade between the auction article's photos on the catalogue and the original one caused by photography or printing, the original one shall prevail.
(4) If an auction article is printed on the catalogue by the Auctioneer, and no caption or photo for it is available, it does not mean the article has no defect. If a particular defect has already been stated, it does not mean it has no other defects.
(5) The Auctioneer shall undertake no guarantee for the authenticity and quality of any article. The Bidder shall authenticate or use other means (including asking for the opinions of experts) before the auction day to examine the original piece to judge if it is genuine and know about the quality of the article he intends to buy. Once he takes part in the bidding, he shall be considered to have exercised the above rights and acknowledged the auction article's status quo (including defects). The bidder is considered willing to be legally responsible for his bidding of a certain auction article, and he will never cancel his bid or refuse to pay the purchase price, commission and other expenses under any excuse whatsoever; otherwise the Auctioneer shall pursue the Bidder's liability in accordance with the Conditions of Business.
4. Facilities in the auction hall
The foreign exchange rate offered by the currency-exchange converter available in the auction hall is for the Bidder's reference only. The Auctioneer shall not be held responsible for the discrepancy between the foreign exchange rate proposed by The People's Bank of China and the one offered on site.
After the successful bidding, the Buyer shall pay the Auctioneer 15% of the“hammer price”as commission. If the Buyer refuses to pay the commission, the Auctioneer shall have the right to pursue the Buyer's liability, but also have a lien on the auction article the Buyer shall collect.
6. Payment and delivery of the auction article
(1) After a successful bidding, the Buyer shall pay the price in full and pick up the article or pay off the rest and pick up the auction article from the auctioneer no late than 7 days after the auction.
(2) The payment shall be paid in RMB. In the event that the Buyer makes payments in currency other than RMB, the payment will be made at the foreign exchange rate announced by the People's Bank of China on the day of the payment.
(3) The Buyer will not get the ownership of any auction article unless he pays the total amount of the purchase price and commission. The Buyer will not collect any one of the articles before he pays off all amounts due and commission.
(4) The Buyer shall collect the article within 7 days of its sale. After the specified date, the Buyer shall be liable to pay transportation fee, storage and all the other charges. The Auctioneer shall not be responsible for the consequences caused by the Buyer's delay.
(5) Once the Buyer allows the Auctioneer to arrange packing and transportation, the Buyer is deemed as trusting the Auctioneer as his agent out of his will. The Auctioneer shall not be responsible for any damage to the article in the process of packing or transportation.
7. The Buyer's liabilities to an auction article after the successful bidding
After the day when the article is sold, the Buyer shall be responsible for the article he has purchased. Even if the article is still kept by the Auctioneer or an agent, the Buyer shall be responsible for the losses or damages not caused by the Auctioneer's intentional act during the keeping period.
8. Remedies for arrears and deferred collection of auctioned articles
If the Buyer fails to pay the amount in full or does not take the auction article away, the Auctioneer has the right to terminate the agreement without any reason and be entitled to exercise one or more rights as follows without informing the Buyer in advance:
(1) Bring a suit to the court where the Auctioneer is under jurisdiction against the Buyer for his breach of contract, and demand the Buyer to pay the hammer price, commission and other expenses as well as compensation for all the losses for his breach of contract (including, but not limited to fees for lawyer's first, second instance and review as well as prosecution procedure. Every procedure shall be no more than 7% of the value of the subject matter of the action or the subject matter of execution to be applied for, and guarantee of attachment).
(2) Do not transfer any one of the articles at the Auctioneer to the Buyer.
(3) Denounce the defaulter by name and his default practice through news media.
(4) Sell the article again by auction or by other means. If the Auctioneer puts the concerned article in auction again or sells the article, the Buyer shall pay the commission which himself and the Seller should have paid in the previous auction. If the article is auctioned/sold at the price lower than the original one, the Buyer shall pay the difference to the Auctioneer. If the article is auctioned/sold at the price higher than the original one, the surplus shall go to the Auctioneer or the Seller, which does not exempt the original Buyer from bearing the liability for any breach of contract.
(5) From the 8th day after the sale date, the Auctioneer shall charge the Buyer interest at a rate of 0.05% per day and storage fee at a rate of 0.03% per day on the due and unpaid amount until such a payment is made fully, unless otherwise agreed by the Buyer and the Auctioneer. If the Buyer stalls the payment, the interest and storage fee accrued due to the delay as well as other losses caused to the Auctioneer accordingly shall be paid as well as the purchase price and other amounts the Buyer shall pay to the Auctioneer.
(6) The deposit shall not be returned to the Buyer. And the Buyer shall pay 30% of the unpaid amount to the Auctioneer as a penalty.
(7) In the event that the Buyer fails to pay any one of the articles at the agreed time according to the Conditions of Business after the successful bidding of several articles under the same bidding paddle, the Auctioneer shall not return all the deposits to the Buyer. The Buyer has no right to take away any one of the articles before he pays off in full.
(8) Within 7 days of the successful bidding, if the Buyer fails to pay the due amount to the Auctioneer and the Seller proposes to retrieve the article, the contract between the Auctioneer and the Buyer shall be deemed as terminated upon the approval of the Auctioneer. The Auctioneer, however, still has the right to require the Buyer to take the liability.
(9) After the successful bidding, if the Buyer fails to make due payment, the Auctioneer shall have the right to entrust a third party to collect all or part of the default payment from the Buyer.
9. Statement of Guarantee
According to the Auction Law of the People's Republic of China, the Auctioneer declares that the introduction and comments, including photos, pictures, slides and news reports about any auction article made by any one of the agents are for reference only, and can never be interpreted as a sort of guarantee. The Auctioneer undertakes no guarantee for the authenticity and quality of any article. So the Buyer (including the trustee) shall examine the auction article in person and be legally responsible for his bidding.
Part II Main Stipulations for the Seller
1. The Seller and guarantee
(1) The Seller shall be the auction truster. The Auctioneer shall take the truster as the legal owner of a certain property in the absence of particular statements; if the article is a co-owned property, the Auctioneer shall take the truster as the representative of the co-owners and deem that the truster has got the permission in the absence of the truster's statements.
(2) The Seller shall show his Identification Card or other valid identity certificates, together with relevant certificate about the potential auction article when he intends to trust the Auctioneer to sell his article by auction. The Seller should also state the origin and content of the article to the Auctioneer and sign a“Consignment Agreement” with the Auctioneer.
(3) The Seller shall have the“right of disposal”or ownership of the article trusted to the Auctioneer for the sale, and he shall be legally responsible for all disputes caused by exhibition, propaganda, publication, auction and so on, hence the Seller shall compensate the Auctioneer for any economic loss and defamation arising from the disputes concerned.
(4) The Seller shall provide the Auctioneer with all kinds of information he knows or ought to know, regarding the origin and defects of the potential auction article, so as to facilitate the Auctioneer to check the article.
(5) The Seller shall not bid his trusted auction article nor trust or employ others to bid for the trusted article.
2. As for the article trusted by the Seller, the Auctioneer shall be fully entitled to handle the following matters:
(1) To decide whether a certain article is fit for auction, and the time, place, terms and by which means the auction will be held.
(2) To introduce and comment on any auction article in the catalogue and through news media.
(3) To terminate the agreement (withdraw an article) any time before the auction day, or to adjust its base price after negotiating with the Seller.
3. The base price
(1) All auction articles shall have their respective base price. The Seller shall have the right to reach a written agreement with the Auctioneer about the base price. If the Seller wishes to change the base price agreed by both parties, he shall get the approval from the Auctioneer first.
(2) The Auctioneer shall not sell an auction article at a price that is lower than the base price. Under the condition that the Auctioneer guarantees that the Seller's actual proceeds is no less than the amount he shall get when the article is sold at the base price, the Auctioneer shall auction the article at a price that is lower than the base price.
4. Auction on consignment
It refers to the way in which the Seller negotiates with the Auctioneer before signing a Consignment Agreement according to which the Seller shall get the auction proceeds after paying the Auctioneer a certain proportion of auction fee and commission on the basis of the hammer price.
5. Commission and other charges
(1) Except otherwise regulated, commission accounts for 10% of the hammer price, while the Seller will not be charged in case the trusted article goes unsold.
(2) Premium accounts for 1% of the hammer price; printing and photography fees can be referred to in the Auctioneer's charging list.
(3) If the Seller refuses to pay the above-mentioned commission and other charges, the Auctioneer shall deduct the amount from the auction proceeds after the sale of the article.
(4) The Seller shall acknowledge all kinds of reasonable expenses the Auctioneer collects from the Buyer according to the agreements.
(1) Except otherwise hinted by the Seller, the Auctioneer has the right to buy insurance for the article or keep the article from the day when the Seller and the Auctioneer sign a Consignment Agreement and the Seller trusts the article to the Auctioneer to the day when the Buyer completes full payments of his bidding or within 35 days after the auction date.
(2) The Seller shall pay 1% of the hammer price as premium. If the article fails to be auctioned, the Seller shall pay 1% of the base price as premium. If the article fails to be auctioned, the Seller shall pay 1% of the base price as premium.
(3) If the Auctioneer is demanded by the Seller in written form not to effect the insurance of his auction article, then the Seller shall be responsible for all the accidents while the Auctioneer shall not be responsible for them. And the Seller shall be liable if there are economic losses and expenses caused by the accidents.
(4) The Auctioneer shall not be responsible for the damages caused by insects and/or change of weather or other irresistible causes to the auction article. If there are other reasons accounting for the damage done to the article and indemnity is needed, then the matter shall be handled in accordance with relevant Chinese insurance laws and regulations. Under the condition that the insurance company agrees to pay the claimed damages, the Seller shall get the rest of the indemnity after deducting the fees (exclusive of commission) he shall pay to the Auctioneer.
7. Payment of proceeds of the auction
(1) If the Buyer has paid off the price in full to the Auctioneer and there is no dispute whatsoever, the Seller shall get the rest of the sale proceeds after deducting the fees as regulated in the Consignment Agreement and Conditions of Business starting from the 35th day after the sale date.
(2) If the Buyer pays the due amount after (or more than) 35 days of the auction date to the Auctioneer, the Auctioneer shall pay the proceeds to the Seller as regulated within 7 working days after receiving the Buyer's payment in full.
(3) RMB shall be the currency the Auctioneer shall pay the Seller after the auction, except otherwise agreed upon by both parties.
(4) According to relevant laws and regulations of the People's Republic of China, the Auctioneer should withhold the tax to the competent authority.
8. Charges for the withdrawal of auction articles
The Seller may withdraw the article before the auction date subject to the Auctioneer's consent with a written notice stating the reasons. In the case the catalogue or any other advertisements of the article have begun to be printed before the Seller's withdrawal, the Seller shall pay an amount equal to 30% of the article's base price and other expenses. In the case the catalogue or any other advertisements of the article have not begun to be printed after the Seller's withdrawal, the Seller shall pay an amount equal to 20% of the article's base price and other expenses. Any dispute or claim arising out of the Seller's withdrawal shall be borne by the Seller.
9. Unsold auction articles or contract rescission between the Buyer and the Auctioneer
If an article fails to be auctioned or the contract is rescinded between the Buyer and the Auctioneer due to any other reason, the Seller shall take the article back at his own expense within 60 days after the auction date or the contract rescission. After the expiry of such a period, the Auctioneer shall have the right to auction the article publicly. The Auctioneer shall also be entitled to demand the Seller to pay all amounts due after the article is auctioned. And the Auctioneer shall charge the Seller storage fees at a rate of 0.03% per day on the base price after the auction date or the contract rescission. The Seller shall be responsible to all the risks and accidents thenceforward.
Part III Other Rights and Duties of the Auctioneer
1. The Auctioneer shall provide services for both the Seller and the Buyer, but it shall not be responsible for any Buyer or Seller's breach of contract.
2. The Auctioneer shall be entitled to refuse any bid which comes after the hammer price, raise bidding price, withdraw any auction article and sell the article in another auction if there are any disputes.
3. The Auctioneer shall have the right to hold exhibitions, auctions, and make announcements, catalogues and other forms of publications to introduce the auction article.
4. The Auctioneer shall ask the Bidder to notice the defects in an auction article, examine the article and decide his own bidding.
5. The Auctioneer shall have the right to determine, together with the Seller, the base price, and to determine the name of currency in auction, means of auction and bidding increments.
6. The Auctioneer shall keep it confidential concerning the Buyer and the Seller in accordance with the laws of the People's Republic of China and the business rules of the Auctioneer; the Auctioneer shall protect the rights and interests of the Buyer, the Seller and the Auctioneer from infringement.
7. According to the agreement between the Auctioneer and the Seller, the Seller shall be the owner of the auction article and shall be legally responsible. The Auctioneer shall not accept or hear any cases regarding different opinions from other persons about the ownership of the auction articles the Auctioneer is going to sell. If the Auctioneer receives an announcement or decision made in accordance with law from the judicial departments before the auction, the Auctioneer shall have the right to stop the auction.
Part IV Definitions of the Terms Used in This Document and Other Terms
The definitions of the terms used in this document and catalogue are as follows:
1. “The Company”, “The Auctioneer” refer to the Xiling Yinshe Auction Co., Ltd.
2. “Different kinds of expenses” refers to expenses collected by the Auctioneer for insurance, catalogue and so on.
3. “Imitation” refers to an auction article different from the caption described in catalogue, including its author, origin, date, period and background.
4. “Auction article” refers to an article or property rights consigned by the Seller to the Auctioneer for sale in the auction.
5. “Base price” refers to the lowest hammer price that should be reached in the auction.
6. “Estimated price” refers to the estimated price of each article shown in the Auctioneer's catalogue. The price is subject to alteration.
7. “Hammer price” refers to the price of a certain auction article upon which the Auctioneer's hammer falls.
8. “Purchase price” refers to the total amount of hammer price and commission that should be paid by the Buyer.
9. “Commission” refers to the expenses collected on a certain percentage by the Auctioneer from both the Buyer and the Seller.
10. “Auction proceeds” refers to the amount paid by the Auctioneer to the Seller after deducting commission calculated by certain rate, other expenses and the amount that the Seller should pay to the Auctioneer on the basis of the hammer price.
11. “Sale/Auction date” means the date on which the Auctioneer confirms the sale of any article in the auction by striking his hammer or in any other public manner.
12. “Notice” refers to a notice in written form. The Auctioneer sends out notice and letters to the address provided by the Consigner, Bidder and Buyer. Once the notice/letter is sent out, it is deemed as delivered to whom is concerned.
13. “Seal” refers to a seal in an auction article. The seal's caption in the Auctioneer's Catalogue is for the Buyer's reference only.
14. “Color” in the catalogue means an auction article (a piece of Chinese calligraphy or painting) is colored.
15. “Defect” refers to authenticity and some tiny flaws in the artwork. The Auctioneer believes all works of art are subject to defects or flaws caused by nature, artists of improper preservation. So the Auctioneer shall ask the Bidder to examine the auction article if he can find any obvious or hidden defects. There is a traditional Chinese saying: “The defects cannot obscure the virtues”. In a word, the Bidder shall determine before bidding whether a certain defect counts or not.
16. The place where obligations of a contract are fulfilled refers to the place where the Auctioneer is located at.
17. The jurisdiction shall be for the court whose jurisdiction area includes the domicile of the Auctioneer. The court shall exercise jurisdiction over disputes in the performance of Consignment Agreement and the contract between the Auctioneer, the Bidder, the Seller and other interested parties.
18. The contact or identification information registered by the Seller, Bidder or Buyer at the Auctioneer is deemed as the information based on which the Auctioneer makes contact with. Notice or other legal documents sent by the Auctioneer or agent and judicial authority using such information to the Seller, Bidder and Buyer is deemed to have been served. For any change in such information, a written notice to the Auctioneer is necessary, otherwise the change is invalid.
*If there are any differences in the comprehension of the English version of the document, the Chinese version shall prevail.
*The right to interpret the Conditions of Business is reserved by the Auctioneer.