Conditions of Sale
These Conditions of Sale apply to all sales made by www.foodmachineryauctions.com in the United Kingdom to the exclusion of all other terms and conditions, whether such sales are made at auction or by private treaty.
Our Catalogue is issued only on the basis that you accept these Conditions of Sale. They govern our relationship with you and no alteration or modification of these terms and conditions shall be binding on www.foodmachineryauctions.com unless accepted in writing by us. Where accessing the Catalogue online your continued use of our Website constitutes acceptance of these Conditions of Sale
1. DEFINITIONS & GLOSSARY
1.1 In these Conditions of Sale the following words and expressions shall unless the context otherwise requires have the following meaning:
"Auction" the Auction sale at which a Lot is to be offered for sale by www.foodmachineryauctions.com.
“FMA” an abbreviation of www.foodmachineryauctions.com.
"Auctioneer" www.foodmachineryauctions.com, including our employees and agents.
"Bidder" a person who has completed a Bidding Registration Form, with the intention of bidding for a Lot.
“Provisional Bid” a bid which is still binding but must be submitted to the vendor for acceptance.
"Bidding Registration Form" means the form to be completed by each Bidder including our bidding registration form, our online registration, our absentee bidding form or our telephone bidding form.
"Business" includes any trade, business or profession.
"Buyer" the Bidder who makes the highest possible bid or offer accepted by the Auctioneer.
"Buyer's Premium" the sum calculated on the Hammer Price and the Lift Out Charge, at the rates stated in the Catalogue.
"Catalogue" the Catalogue relating to the relevant Auction, including any representation of the Catalogue published on our Website.
"Commission" the Commission payable by the Seller to www.foodmachineryauctions.com calculated at the rates stated in the Contract Form.
"Conditions of Sale" these conditions of sale under which the Contract
"Consumer" a natural person who is acting for the relevant purpose outside his trade, business or profession.
"Container Shipment" where the Buyer requires the Auctioneer to load the Lot into the Buyer's containers.
"Contract" a contract by which the Seller and the Buyer agrees to buy the Lot.
"Contract Form" the form of agreement signed by or on behalf of the Seller listing the Lots to be offered for sale at Auction.
"Description" any statement or representation in any way descriptive of the Lot, including any statement or representation relating to its condition, style, age, suitability, quality, size, capacity, value, estimated selling price (including the Hammer Price).
"Entry" a written statement in the Catalogue identifying the Lot and its Lot number which may contain a Description and illustration(s) relating to the Lot.
"Estimate" a statement of our opinion of the range within which the hammer is likely to fall. Any Estimate is exclusive of VAT which shall be payable pursuant to these Conditions of Sale.
"Expenses" charges and Expenses paid or payable by www.foodmachineryauctions.com in respect of the Lot including legal expenses, banking charges and Expenses incurred as a result of an electronic transfer of money, charges and expenses for loss and damage cover, insurance, Catalogue and other reproductions and illustrations, any customs duties, advertising, packing or shipping costs, reproductions rights' fees, taxes, levies, costs of testing, searches or enquiries, preparation of the Lot for sale, storage charges, removal charges, removal charges or costs of collection from the Seller as the Seller's agents or from a defaulting Buyer, plus VAT if applicable.
"Hammer Price" the price in the currency in which the Auction is conducted at which a Lot is "knocked down" by the Auctioneer.
"Lift Out Charge" the amount payable to www.foodmachineryauctions.com for disconnection and loading of the Lot, plus any ancillary costs/charges. This Lift Out Charge is subject to any Buyers Premium and VAT which may be payable.
"Lot" each item consigned to www.foodmachineryauctions.com with a view to its sale at Auction or by private treaty (and reference to any Lot will include, unless the context otherwise requires, reference to individual items comprised in a group of two or more items offered for sale as one Lot), to include third party items which www.foodmachineryauctions.com at our absolute discretion reserve the right to introduce into any Auction.
"Purchase Price" the aggregate of the Hammer Price, the Buyer’s Premium, the Lift Out Charge and VAT.
"Reserve" means the minimum Hammer Price (if any) agreed between the Auctioneer and the Seller at which the Lot may be sold
"Sale Proceeds" the net amount due to the Seller from the sale of a Lot, being the Hammer Price less the Commission, any VAT chargeable thereon, Expenses and any other amount due to us in whatever capacity and howsoever arising.
"Seller" the person who offers the Lot for sale named on the Contract Form. Where the person so named identifies on the form another person as acting as his agent, or where the person named on the Contract Form acts as an agent for a principal (whether such agency is disclosed to www.foodmachineryauctions.com or not), "Seller" includes both the agent and the principal who shall be jointly and severally liable as such.
"Without Reserve" where there is no minimum price at which a Lot may be sold (whether at Auction or by private treaty).
1.2 The following expressions have specific legal meanings with which you may not be familiar. The following glossary is intended to give you an understanding of those expressions but is not intended to limit their legal meanings:
"bailee": a person to whom goods are entrusted and who may be committed to certain duties of care towards the goods while it remains in his or her possession.
"indemnity": a right of someone to recover from a third party the whole amount which he himself is liable to pay.
"lien": a right which entitles a party to hold on to assets in his possession pending payment of a debt owed.
"risk": the possibility that a Lot may be lost, damaged, destroyed, stolen, or deteriorate in condition or value.
"title": the legal and equitable right to the ownership of a Lot.
"tort": is a civil liability for breach of obligations imposed by law.
1.3 Under these Conditions of Sale www.foodmachineryauctions.com act as agent for the Seller, such authority shall include the right to: prepare the Catalogue from information provided by the Seller; offer each Lot for sale; sell each Lot
1.4 We will offer the Lot for sale on the Conditions of Sale set out herein.
1.5 Clause headings shall not affect the interpretation of these Conditions of Sale.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 References to Clauses are to the Clauses of these Conditions of Sale.
1.8 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 These Conditions of Sale are subject to alteration by us before the sale of your Lot, but we will only alter them in a way which is reasonable as between you and us.
2. APPLICATION OF THESE CONDITIONS
2.1 These conditions apply to every Auction conducted by the Auctioneer and to any Lot offered for sale in the Auction whether that Lot includes property fixed to land or not fixed to land or any other personal property.
2.2 When a lot is "knocked down" to a bidder by the Auctioneer, a legally binding Contract is immediately created. The Contract will incorporate these Conditions of Sale and the Buyer shall comply with the post-sale obligations set out in Clause 10 below.
3. PRE-CONTRACT STATEMENTS AND REPRESENTATIONS
3.1 We have taken reasonable care in preparing the Catalogue entry for the relevant Lot. The Catalogue entry is prepared from information and Descriptions of the Lot provided by the Seller.
3.2 All statements by us in the Catalogue entry for the Lot, or made orally or in writing elsewhere, are statements of opinion and are not to be relied on as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by us of any kind. References in the Catalogue entry to damage or restoration are for guidance only and should be evaluated by personal inspection by the Bidder or its representative. The absence of such a reference does not imply that an item is free from defects, nor does a reference to particular defects imply the absence of any others.
3.3 Bidders are advised to examine personally any Lot in which they are interested, before the Auction takes place. Neither www.foodmachineryauctions.com nor the Seller provides any guarantee in relation to the nature of the Lot. The property is sold “as is”.
3.4 All Lots are sold “as is” without any representation or warranty of any kind by www.foodmachineryauctions.com or the Seller. Buyers are responsible for satisfying themselves concerning the condition of the Lot and the matters referred to in the Catalogue.
4. FEES AND CHARGES
4.1 The Auctioneer’s remuneration shall be such as has been agreed between the Seller and the Auctioneer in the Contract Form. Where such remuneration is not agreed in the Contract Form the Seller shall pay the Auctioneer commission calculated at [15%] of the Hammer Price of each Lot.
4.2 The Auctioneer reserves the right to deduct his remuneration from monies received from the Buyer before accounting to the Seller for the balance.
4.3 Unless otherwise stated in the Contract Form, all sums payable to the Auctioneer will be subject to VAT at the appropriate rate and VAT will be payable on all such sums.
4.4 If the Supplier fails to make any payment due to the Auctioneer under these Conditions of Sale by the due date for payment, the Seller shall pay interest on the overdue amount at the rate of 5% per annum above the base lending rate of Bank of Scotland Plc from time to time. to be
calculated on a daily basis from the date the sum became due until payment. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
4.5 The Supplier shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
4.6 Time of payment is of the essence.
5. SELLER'S WARRANTIES
5.1 The Seller warrants to www.foodmachineryauctions.com and the Buyer that:
5.1.1 the Seller is the owner of the Lot or, if the Seller is not the owner of the Lot (whether or not the Seller has notified us that the Seller is acting as an agent for a principal), the Seller is duly authorised by the owner of the Lot to sell it;
5.1.2 save as disclosed to us in writing, the Seller sells the Lot with full title guarantee free from all liens, charges, encumbrances and third party claims;
5.1.3 the Seller, (i) holds full clear and unencumbered title in and to all of the Lot; (ii) will on the fall of the hammer hold full clear and unencumbered title in and to all of the Lot; and (iii) will on the fall of the hammer have the full and unrestricted right power and authority to sell transfer and deliver all of the Lot to the Buyer hereunder whereupon, subject to Clause 10.5, the Buyer will acquire valid and unencumbered title thereto;
5.1.4 the Seller has at all times complied with all applicable laws, regulations, requirements and by-laws, including those relating to any export or import of the Lot. All duties and taxes in respect of the export or import of the Lot have (unless otherwise agreed in writing with us) been paid and, so far as the Seller and any principal for whom the Seller acts are aware, all third parties have complied with such requirements in the past;
5.1.5 in providing us with information for the Catalogue they have provided us with all material information, including information about any material alterations to the Lot of which the Seller is aware or which is in the Seller’s possession or of which any principal for whom the Seller acts in relation to the Lot is aware or possesses;
5.1.6 the Seller has notified us of all information of which the Seller is aware or reasonably ought to be aware relating to the present or past ownerships or use of the Lot (including any association of the Lot with persons or events of note);
5.1.7 unless the Seller notifies us in writing to the contrary at the time the Lot is delivered to us, there are no restrictions, (whether copyright or otherwise), affecting the Lot or our rights to photograph or illustrate the Lot, or reproduce (in any manner and in any media) photographs or illustrations or any text of any information or Description of, about or relating to the Lot provided by the Seller or on the Seller’s behalf;
5.2 Should the Seller become aware of any information (including any concerns expressed by third parties) in relation to the Lot which will or is likely to affect the Lot's sale, after this Contract has been made, the Seller will promptly inform us in writing of such information;
6. INDEMNITIES FROM THE SELLER
6.1 The Seller shall hold www.foodmachineryauctions.com harmless and keep us indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the www.foodmachineryauctions.com as a result of or in connection with:
6.1.1 any actual or alleged breach of Contract by the Seller, whether by act or omission or otherwise;
6.1.2 any injury, loss or damage caused to any person by the Sellers acts or omissions;
6.1.3 our exercising any of our rights, powers and/or duties under Clauses 8.1 or 8.4;
6.1.4 our receiving or recovering (or seeking to recover where you have authorised us to do so) the Purchase Price, where our costs and Expenses are not otherwise recouped by us;
6.1.5 the Seller’s fraud and our exercising any of our rights or powers under paragraph 16 in the event of fraud;
6.1.6 without prejudice to paragraph 6.1.1, any error, misrepresentation or omission in any Description of the Lot or any Estimate in relation to it, so long as it was not caused by our breach of this Contract.
7. CATALOGUE & MARKETING
7.1 We will publish an Entry about the Lot in the Catalogue for the Sale. This may be by insert after publication of the Catalogue. The Entry may also at our discretion be published on our Website but we are under no obligation to do so.
7.2 The Entry will contain an Estimate and an expression of our opinion in relation to the Lot. We may at our discretion include photograph(s) and/or illustration(s) of the Lot in the Entry, but we are not under any obligation to do so.
7.3 Any Entry or any marketing or promotional material may be revised either orally or in writing from time to time (including during the A) at our discretion.
7.4 The copyright in the text and the photographs and illustrations of the Lot contained in the Entry or the Catalogue or on our Website or in any marketing or promotional material belongs to us.
8. OUR RIGHT TO REFUSE TO SELL AND OTHER RESPONSES FOR CAUSE
8.1 If we have reasonable cause for believing that:
8.1.1 we and/or the Seller may be or are restrained by order of the court or other competent authority in respect of the Lot, or may be or are otherwise not legally entitled to sell the Lot; or
8.1.2 the Seller is in breach of any of the warranties in Clause 5; or
8.1.3 the information about or Description of the Lot given to us by the Seller or on the Seller’s behalf is inaccurate or misleading in any material respect;
8.2 We will give the Seller written notice of any decision under paragraph 8.1 and where possible of the reason for it as soon as practicable after making our decision to refuse to sell the Lot in question.
8.3 In addition to our right to refuse to sell the Lot under paragraph 8.1, we may, refuse to sell any Lot for any reason.
8.4 Whenever it becomes apparent to us that the Lot is the subject of a claim by someone other than the Seller (or that such a claim can reasonably be expected to be made), we may, at our absolute discretion, deal with the Lot in any manner which appears to us to recognise the legitimate interests of ourselves and the other parties involved and lawfully protect our position and our legitimate interests. Without prejudice to the generality of this discretion and by way of example, we may:
8.4.1 refuse to sell the Lot; and/or
8.4.2 retain the Lot to investigate any question raised or reasonably expected by us to be raised in relation to it; and/or
8.4.3 deliver the Lot to a person other than the Seller; and/or
8.4.4 bring proceedings or seek any other order of any court, mediator, arbitrator or government body at the cost of the Seller ; and/or
8.4.5 require a further indemnity (beyond those set out in paragraph 6 and/or security from the Seller in return for pursuing a course of action agreed to by the Seller.
8.5 We will not exercise the rights under paragraph 8.4:
8.5.1 unless we believe that there exists reasonable prospects of success in favour of the claim; or
8.5.2 where the claim is a legitimate claim to the possession of the Lot by a Buyer of the Lot.
8.6 The rights under paragraph 8.4 are without prejudice to our rights to refuse to sell the Lot set out in paragraphs 8.1 and 8.3 and we may exercise them in addition to or in substitution for those rights and notwithstanding the exercise of our rights any Expenses shall remain due and payable to us on demand.
8.7 The rights under paragraph 8.4 may be exercised at any time during which we have actual or constructive possession of the Lot, or at any time after such possession, where the cessation of such possession has occurred by reason of any decision, order or ruling of any court, mediator, arbitrator or government body.
9. CONDUCT OF THE AUCTION
9.1 Each Bidder shall register their intention to bid for a Lot by completing a Bidding Form prior to the Auction. Each Bidder shall provide such photographic identification as may be required by the Auctioneer.
9.2 Each Bidder shall be deemed to act as principal unless the Auctioneer has, prior to the Auction Date, acknowledged by acceptance of the Bidders Bidding Form which states that the Bidder is acting as agent on behalf of a disclosed principal.
9.3 Unless stated otherwise each Lot is subject to a Reserve (which the Auctioneer or Seller may fix just before the Lot is offered for sale). Subject to clause 15.1, if no bids equal or exceed the Reserve the Lot will be withdrawn from the Auction.
9.4 The Seller or his representative or the Auctioneer on his behalf may bid for any Lot unless otherwise indicated in the Catalogue.
9.5 The conduct of any Auction, including the method and format of the Auction, is at the sole discretion of the Auctioneer. The Auctioneer reserves the right at any time before the fall of the hammer to withdraw or divide any Lot or combine any Lot.
9.6 The Auctioneer and the Seller reserve the right to sell any Lot or part of a Lot by private treaty prior to the Auction date. Any Lot advertised in the Catalogue, but not sold at Auction, may be sold by private treaty after the Auction.
9.7 When bidding online the Bidder must be aware that:
9.7.1 it cannot withdraw or amend a bid once submitted even where such bid was submitted in error. The Auctioneer reserves the right to allow the amendment or withdrawal of bids in some extreme circumstances;
9.7.2 it can either bid on a Lot in accordance with the bidding increments displayed on the screen during the Auction, or enter a proxy bid for the Lot in excess of the next bidding increment and an employee of www.foodmachineryauctions.com will bid on the Bidders behalf at the lowest value possible, subject to any reserve and other bids placed for the Lot; and
9.7.3 www.foodmachineryauctions.com reserves the right to reject a registration to bid online, withdraw its permission for any Bidder to use www.foodmachineryauctions.com online bidding facility, at any time, without the need to provide an explanation.
9.8 The Auctioneer reserves the right to reject any bid at our sole discretion and without being required to give a reason.
9.9 The Buyer shall be the person who made the highest bid before the fall of the hammer or such other person as the Auctioneer may declare to be the Buyer without being required to give a reason
9.10 Should a dispute arise between two or more Bidders the Auctioneer reserves the right to summarily decide the dispute at hand or immediately offer the Lot for resale, without being required to give a reason.
9.11 The Seller may by written notice to the Auctioneer withdraw the Lot from the Auction.
9.12 Where the Seller withdraws a Lot pursuant to Clause 9.11 the Seller shall:
9.12.1 be liable to pay [15%] of the Estimate to the Auctioneer; and
9.12.2 if required, arrange for the collection/removal of the Lot at the Seller's expense no later than 2 working days following the date the Seller served notice pursuant to Clause 9.11 provided that the Seller may not collect the Lot unless or until the withdrawal fee specified in Clause 9.12.1 is paid in full and any storage charges have been paid by the Seller.
10. AFTER THE SALE
10.1 Upon the Auctioneer declaring any Lot sold, the Buyer shall:
10.1.1 immediately provide all such information as the Auctioneer may reasonably request, including:
(a) the Buyer's name and address and if requested his proof of identity;
(b) the identity of any principal where the Buyer is acting as agent; and 10.1.2 pay to the Auctioneer, if requested, up to 50% of the Purchase Price;
10.2Within the time specified in clause 10.3 below, the Buyer shall pay the following sums to the Auctioneer in full:
10.2.1 the balance of the Purchase Price of all Lots purchased together with any VAT due;
10.2.2 the value as summarily determined by the Auctioneer, whose determination shall be final and binding, of all or part of any Lot or of the premises where the Auction is held which has been damaged or destroyed by the Buyer or his principal or agent.
10.3 The time for complying with clause 10.2 above shall be the time specified in the Catalogue or if no time is specified in the Catalogue, 4pm on the next working day after the Auction (or in the case of a successful online bid by 4pm on the next working day after receipt of notification that you were the successful Bidder), and in every case time shall be of the essence.
10.4 The Auctioneer may at our sole discretion grant an extension of time to the Buyer for the Buyer to comply with clause 10.2 above.
10.5 Title to the Lot will only pass to the Buyer on receipt by us in cleared funds of the full Purchase Price. Once the Buyer has paid the Purchase Price and all other sums due to us, we will release the Lot to the Buyer. The Buyer shall not be entitled to remove the Lot until such time as it has paid all sums due to us.
10.6 Unless otherwise agreed in writing between the Seller and us, we may at our discretion pay the Sale Proceeds to the Seller before receipt of the Purchase Price, and, on our doing so, title in the Lot will pass to us and the Seller’s right to payment of the Purchase Price will pass to us together with any right of action which the Seller may have against the Buyer for non- payment.
10.7 If before the Sale Proceeds have been distributed to the Seller the Buyer or any other person makes a claim against either the Seller or us in relation to the Lot, we may withhold distribution of the Sale Proceeds to the Seller until such time as the claim has been resolved. In that event we will transfer the Sale Proceeds into a separate interest bearing account with our bank.
10.8 If the Buyer fails or refuses to pay the Purchase Price for the Lot in accordance with this Clause 10, we will notify the Seller of this as soon as reasonably practicable following the date payment was due from the Buyer pursuant to Clause 10.3.
11. COLLECTION OF THE LOT
11.1 Subject to compliance with Clause 10, the Buyer must collect and remove the Lot at the Buyer's expense by the date and time specified in the Catalogue, or if no date is specified, by 5pm on the next working day after the Auction (or in the case of a successful online bid by 4pm on the next working day after receipt of notification that you were the successful Bidder).
11.2 The Auctioneer may at our sole discretion grant an extension of time to the Buyer for the Buyer to comply with Clause 11.1 above.
11.3 The Buyer will be wholly responsible for packing, handling, and transport of the Lot on collection and for complying with any import or export regulations, taxes or duties in connection with the Lot.
11.4 The Buyer will be wholly responsible for any removal, storage, or other charges for any Lot not removed in accordance with paragraph 11.1, payable at our current rates, and any Expenses we incur all of which must be paid by the Buyer on demand and in any event before any collection of the Lot by the Buyer or on behalf of the Buyer.
11.6 All Lots are subject to a Lift Out Charge which is non-negotiable. The Lift Out Charge shall be notified to the Buyer in writing and does not cover Container Shipment which, if required, will incur an additional charge for labour, straps and packing materials.
12. STORING THE LOT
12.1 We agree to store the Lot until the earlier of the removal of the Lot by the Buyer or until the time and date set out in the Catalogue (or if no date is specified, by 5pm on the next working day after the Auction, or in the case of a successful online bid by 5pm on the next working day after receipt of notification that you were the successful Bidder).
12.2 If you have not paid for the Lot in accordance with clause 10, www.foodmachineryauctions.com reserves the right to move the Lot to a third party's premises, the Lot will be held by such third party strictly to www.foodmachineryauctions.com order and we will retain a lien over the Lot until we have been paid in full in accordance with clause 10.
13. RESPONSIBILITY FOR THE LOT
13.1 Whilst title to the Lot shall pass the Buyer pursuant to Clause 10.5 risk in the Lot passes to the Buyer when it is "knocked down" to the Buyer.
13.2 The Buyer is advised to obtain insurance in respect of the Lot as soon as possible after the Auction.
13.3 Any Lot in the possession of the Auctioneer prior to sale shall remain at the risk of the Seller until such time as it is "knocked down" to the Buyer or collected from the Auctioneer by the Seller.
14. FAILURE BY THE BUYER TO PAY OR TO REMOVE THE LOT AND PART PAYMENTS
14.1 If all sums payable to us are not so paid in full at the time they are due and/or the Lot is not removed in accordance with these Conditions of Sale, we shall, without further notice to the Buyer, be entitled to exercise one or more of the following rights (without prejudice to any rights we may exercise on behalf of the Seller):
14.1.1 terminate this Contract immediately for the Buyer’s breach of contract;
14.1.2 retain possession of the Lot;
14.1.3 remove, and/or store the Lot at the Buyer’s expense;
14.1.4 take legal proceedings against the Buyer for payment of any sums payable to us by the Buyer (including the Purchase Price) and/or damages for breach of contract;
14.1.5 be paid interest on any monies due to us (after as well as before judgment or order) at the annual rate of 5% per annum above the base lending rate of Bank of Scotland Plc from time to time to be calculated on a daily basis from the date upon which such monies become payable until the date of actual payment;
14.1.6 to repossess the Lot (or any part thereof) which has not become the property of the Buyer, and for this purpose (unless the Buyer buys the Lot as a Consumer) the Buyer hereby grants an irrevocable licence to us, by ourselves, our servants or agents, to enter upon all or any of the Buyer's premises (with or without vehicles) during normal business hours to take possession of any Lot or part thereof;
14.1.7 to sell the Lot Without Reserve by Auction, private treaty or any other means on giving the Buyer written notice of our intention to do so;
14.1.8 to retain possession of any of the Buyer’s other property in our possession for any purpose (including, without limitation, other goods sold to you or with us for sale) until all sums due to us have been paid in full;
14.1.9 to apply any monies received from the Buyer for any purpose whether at the time of your default or at any time thereafter in payment or part payment of any sums due to us by the Buyer under this agreement;
14.1.10 on three months' written notice to sell, Without Reserve, any of the Buyer’s other property in our possession or under our control for any purpose (including other goods sold to you or with us for sale) and to apply any monies due to you as a result of such sale in payment or part payment of any amounts owed to us;
14.1.11 refuse to allow the Buyer to register for a future Auction or to reject a bid from the Buyer at any future Auction or to require the Buyer to pay a deposit before any bid is accepted by us at any future Auction in which case we will be entitled to apply such deposit in payment or part payment, as the case may be, of the Purchase Price of any Lot of which you are the Buyer.
14.2 The Buyer agrees to indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the www.foodmachineryauctions.com as a result of our taking steps under this clause 14 on a full indemnity basis together with interest thereon (after as well as before judgment or order) at the rate specified in clause 14.1.5 from the date upon which we become liable to pay the same until payment by you.
15. AUTHORITY TO SELL OR DISPOSE OF AN UNSOLD LOT
15.1 If the Lot is unsold at the Auction, we may for a period of at least 21 days following the Auction enter into an agreement to sell the Lot (at Auction or by private treaty) upon such terms and conditions as we may reasonably consider appropriate. Subject to paragraph 15.2 below, the minimum Sale Proceeds from such a sale will (if a Reserve has been agreed with or accepted by us) be not less than the Sale Proceeds would have been if the Lot had been sold at the Reserve. Subject to paragraph 15.2 below, in the case where the Contract Form states that we are given "discretion" in relation to the Reserve then we may agree to sell the Lot at up to 50% less than the Reserve, and the Sale Proceeds from such a sale will be not less than the Sale Proceeds would have been if the Lot had been sold for an amount equal to 50% of the Reserve.
15.2 Where a Lot has not sold at the Auction and we believe that it could be sold if the Reserve were reduced we will provide written notice to the Seller setting out our suggestion as to a new Reserve. If the Seller does not object to the new Reserve suggested by us within 10 days of deemed receipt of our written notice then the Reserve will be reduced accordingly. If the Seller objects to the new Reserve within the above time period then the Reserve will remain unchanged and our authority to sell the Lot in accordance with these conditions shall continue.
15.3 We will, unless agreed otherwise, be entitled to Commission on the sale of the Lot under paragraph 15.1 and we are entitled to charge a Buyer's Premium plus VAT to any Buyer of any Lot on any such sale.
15.4 If an unsold Lot has no monetary value, the Seller authorises us to dispose of it in such manner as we think fit. We will give the Seller 7 days notice of such disposal to allow the Seller to collect it if you wish.
16.1 In the event of any fraud by the Seller, or anyone acting on behalf of the Seller, which has induced the Buyer to purchase the Lot, we will be entitled at our discretion and irrespective of whether we are personally liable to the Buyer to act in any reasonable manner which appears to us to be best calculated to compensate the Buyer (which may include but is not limited to repurchasing the Lot from the Buyer) and, so long as “FMA” did not act fraudulently, the Seller will indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the www.foodmachineryauctions.com as a result of or in connection with such activity.
16.2 The Seller authorises us to carry out such tests and processes on a Lot as we consider necessary to establish whether this Clause 16 may apply.
17. LIMITS ON OUR LIABILITY
17.1 www.foodmachineryauctions.com believes the Seller of each Lot is able to pass good title, and if the Seller is not able to do so, www.foodmachineryauctions.com shall use reasonable endeavours to assist the Buyer in obtaining good title and in pursuing any remedies the Buyer might have against the Seller, but www.foodmachineryauctions.com shall not be bound to initiate litigation and shall not be under any obligation to the Buyer.
17.2 www.foodmachineryauctions.com does not have any expert or other knowledge of any Lot sold and hereby excludes any liability that it might otherwise incur in respect of any conditions warranties or representations relating to the condition of any Lot sold or the merchantable quality of the Lot or its fitness for the particular or any purpose for which it is or may be required whether such conditions warranties or representations are expressed or implied in the Catalogue or are the subject of oral or written statements made by or on behalf of www.foodmachineryauctions.com or any other person before or in the course of the Auction.
17.3 www.foodmachineryauctions.com will not be liable (whether in negligence, other tort, breach of contract or statutory duty or in restitution or in any other way) whether as a result of an act or an omission, whether before or after this agreement, for any lack of conformity with or inaccuracy, error or misdescription or omission in any Description of a Lot or any opinion, Entry or Estimate in respect of it (whether made in writing, including in the Catalogue, or on our Website, or orally or by conduct or otherwise)
17.4 Every Lot is sold as seen and where lying. A Buyer will be deemed to have carefully inspected any Lot he intends to purchase prior to bidding.
17.5 Subject to Clause 17.6, www.foodmachineryauctions.com shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any injury or damage by reason of:
17.5.1any defect in any Lot sold, whether or not such defect be latent or apparent on examination;
17.5.2any defect or danger of the premises where the Auction is held;
17.5.3any act or omission of the Auctioneer in the conduct of the Auction or after the Auction; 17.5.4any act or omission of any person other than the Auctioneer.
17.6 Nothing set out above will be construed as excluding or restricting (whether directly or indirectly) any person's liability or excluding or restricting any person's rights or remedies in respect of (i) fraud, or (ii) death or personal injury caused by our negligence (or any person under our control or for whom we are legally responsible), or (iii) acts or omissions for which we are liable under the Occupiers Liability Act 1957, or (iv) any other liability to the extent the same may not be excluded or restricted as a matter of law.
17.7 Subject to Clause 17.6 www.foodmachineryauctions.com shall under no circumstances be liable to the Buyer or the Seller, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.
17.8 The Auctioneer's total liability to the Buyer or Seller for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to an amount equal to the Buyer's Premium payable in respect of the Lot for which the liability arises.
18.1 In the event of a dispute between www.foodmachineryauctions.com and a Buyer or Seller, the Buyer/Seller hereby agrees to refrain from publicising or causing to be publicised or circulated any details of the dispute, until a finding by a court of competent jurisdiction
18.2 Nothing in these Conditions of Sale shall operate to restrict or limit our ability to provide a Bidder with a copy of any and all of the information which the Seller supplies to the www.foodmachineryauctions.com in relation to the Lot.
19.1 Waiver - If we do not insist immediately that you do anything you are required to do under this agreement, or if we delay in taking steps against you in respect of your breaking this agreement, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products you have purchased, we can still require you to make the payment at a later date
19.2 Force Majeure - None of the parties shall be liable for any failure or delay in performing their obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A 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, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, 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. This paragraph does not apply to the obligations imposed on you by Clause 4, 5 or 6.
19.3 Notice - Any notice or other communication to be given under this agreement must be in writing and may be delivered by hand or sent by pre-paid first class post or other next working day delivery service, to the address of the relevant party given in the Contract Form (unless notice of any change of address is given in writing). It is the responsibility of the sender of the notice or communication to ensure that it is received in a legible form within any applicable time period. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to the Contract Form; if sent by pre- paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting
19.4 Severance - If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this clause shall not affect the validity and enforceability of the rest of the agreement.
19.5 Third party rights -
19.5.1 Save as expressly provided for in the Contract, a person who is not a party to the Contract shall not have any rights to enforce its terms.
19.5.2 Where the Contract confers an immunity from, and/or an exclusion or restriction of, the responsibility and/or liability of www.foodmachineryauctions.com, this Contract will also operate in favour and for the benefit of www.foodmachineryauctions.com holding company and the subsidiaries of such holding company and the successors and assigns of www.foodmachineryauctions.com and of such companies and of any officer, employee and agent of www.foodmachineryauctions.com and such companies, each of whom will be entitled to rely on the relevant immunity and/or exclusion and/or restriction within and for the purposes of Contracts (Rights of Third Parties) Act 1999, which enables the benefit of a contract to be extended to a person who is not a party to the contract, and generally at law.
19.6 Entire Agreement - This agreement constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
19.7 Variation - Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by www.foodmachineryauctions.com.
20. GOVERNING LAW AND JURISDICTION
20.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims.