Strauss & co - 26 - 28 July 2020, Online

254 3.4.  Commission and expenses  3.4.1.  Seller’s commission, calculated at the applicable current rate of the hammer price, shall be payable by the seller to Strauss & Co in respect of the sale of each lot comprising one or more objects submitted by the seller for sale. The seller acknowledges that Strauss & Co may also receive a buyer’s premium and other fees for or in respect of that lot. Without derogating from the seller’s obligation to pay the seller’s commission and any recoverable expenses for which the seller is liable, the seller irrevocably authorises Strauss & Co to deduct from the hammer price of any lot the seller’s commission and all such recoverable expenses for which the seller is liable.  3.4.2.  Strauss & Co may deduct and retain the seller’s com- mission and the recoverable expenses for which the seller is liable from the amount paid by the buyer for the lot as soon as the purchase price, or part of it, is received and prior to the sale proceeds being paid to the seller. 3.5.  Reserve  3.5.1.  All lots will be sold without reserve or minimum price unless a reserve has been placed on a lot, in which event such lot will be offered for sale sub- ject to the reserve. A reserve shall only be placed on a lot if agreed in writing between the seller and Strauss & Co prior to the auction. A reserve, once placed on a lot, may not be changed by the seller without the prior written consent of Strauss & Co. Should Strauss & Co consent to an increase of the reserve on a lot, Strauss & Co reserves the right to charge the seller an additional offer fee as the ob- ject may not be sold on auction as a result of the increased reserve.  3.5.2.  Where a reserve has been placed on a lot, only the auctioneer may bid on behalf of the seller.  3.5.3.  Where a reserve has been placed on a lot and the auctioneer is of the opinion that the seller or any person acting as agent of the seller may have bid on the lot, the auctioneer may knock down the lot to the seller without observing the reserve and the seller shall pay to Strauss & Co the buyer’s premium and all expenses for which the buyer is liable in ad- dition to the seller’s commission and all expenses for which the seller is liable.  3.5.4.  Where a reserve has been placed on a lot, Strauss & Co may, at its option, still sell a lot at a hammer price below the reserve, provided that the sale proceeds to which the seller is entitled will be the same as they would have had the sale been at the reserve. Without limiting the generality of the foregoing, where Strauss & Co does sell a lot below reserve, Strauss & Co reserves the right to adjust its seller’s commission charge/rate accordingly to ensure that the seller is paid the correct proceeds it would have, had the sale been at the reserve.  3.5.5.  Should no reserve have been placed on a lot, Strauss & Co shall not be liable if the purchase price of the lot is less than the estimated selling range. 3.6.  Insurance  3.6.1.  Unless Strauss & Co and the seller have otherwise agreed in writing, Strauss & Co will insure all objects, with the exception of motor vehicles, consigned to it or put under its control for sale and may, at its discretion, insure property placed under its control for any other purpose for as long as such objects or property remain at Strauss & Co’s premises or in any other storage depot chosen by them.  3.6.2.  Thesum forwhichStrauss&Coso insuresanyobject shall not be construed as a warranty or representa- tion by Strauss & Co as to the value thereof.   3.6.3.  If any payment is made to Strauss & Co under the said insurance, in the event of loss or damage to any object, Strauss & Co shall pay such amount to the seller after deduction of the seller’s commission and expenses incurred by them.  3.6.4.  In the event the seller instructs Strauss & Co not to insure a lot or property submitted for sale, it shall at all times remain at the risk of the seller. In such an event, the seller undertakes to: 3.6.4.1.  indemnify Strauss & Co against all claims made or proceedings brought against them in respect of damage or loss to the lot of whatsoever nature and howsoever arising and in all circumstances, even when negligence is alleged or proved; 3.6.4.2.  reimburse Strauss & Co on demand for all costs, payments or expenses made or incurred in connec- tion herewith. All payment made by Strauss & Co in connection with such loss, damage, payments, costs or expenses shall be binding on the seller as conclusive evidence thereof that Strauss & Co was liable to make such payment; and 3.6.4.3.  notify any insurer of the existence of the indemnity contained herein. 3.7.  Payments for the proceeds of sale  3.7.1.  Strauss & Co shall only be liable to remit the sale proceeds of a lot to the seller thereof on the later of thirty days after the date of the sale of that lot or seven days after the date on which the full purchase price for that lot has been received by Strauss & Co in cleared funds.  3.7.2.  If the buyer of a lot fails to pay the total amount due to Strauss & Co within forty eight days after the date of sale of that lot, Strauss & Co shall give notice of this to the seller of that lot and shall request the sell- er’s written instructions as to the appropriate course of action to be followed. Should Strauss & Co deem it so appropriate, Strauss & Co will assist the seller to recover the total amount due from the buyer. Should no written instructions be forthcoming from the seller within seven days after request, the seller hereby authorises Strauss & Co, at Strauss & Co’s ab- solute discretion but at the seller’s expense: 3.7.2.1.  to agree terms for payment of the total outstanding amount; 3.7.2.2.  to remove, store and insure the lot sold; 3.7.2.3.  to settle any claim by or against the buyer on such terms as Strauss & Co in their absolute discretion deem fit; 3.7.2.4.  to take such steps as Strauss & Co in their absolute discretion consider necessary to collect monies due to the seller from the buyer; and 3.7.2.5.  if necessary, to rescind the sale and refund any monies to the buyer.  3.7.3.  Should Strauss & Co pay an amount equal to the sale proceeds to the seller before having received full payment of the purchase price from the buyer, ownership of the lot shall pass to Strauss & Co.  3.7.4.  If the sale of any lot is rescinded, set aside or can- celled by an action of the buyer, and Strauss & Co has accounted to the seller for the sale proceeds, the seller shall immediately refund the full sale proceeds to Strauss & Co, who will in turn refund the purchase price to the buyer and make the lot available to the seller for collection. Any annulment, rescission, cancellation or nullification of the sale shall not af- fect the seller’s obligation to pay the commission to Strauss & Co and/or to reimburse any expenses incurred by Strauss & Co. 3.8.  Withdrawal fees  3.8.1.  A seller may only withdraw a lot from being offered for sale by written notification to Strauss & Co, which is received by Strauss & Co at least twenty four hours prior to the commencement of the auction at which the lot is to be offered for sale.  3.8.2.  Upon receipt of proper notification of withdrawal as envisaged in clause 2.8.1, Strauss & Co reserves the right to charge the full seller’s commission and buyer’s premium to the seller as a withdrawal fee, both calculated on the latest middle estimate of the selling price of the property withdrawn, together withVAT and all expenses incurred in relation to the property.The withdrawal fee (together withVAT and all such expenses) must be received into Strauss & Co’s designated bank account in full in cleared funds before the lot will be withdrawn.  3.8.3.  If a lot is withdrawn, the seller shall arrange for the collection and removal of the lot at the seller’s expense within three days after date of the with- drawal, provided the seller has paid the recoverable expenses and applicable withdrawal fee to Strauss & Co. 3.9.  Photography and illustration Strauss & Co shall have the full and absolute right to il- lustrate, photograph or otherwise reproduce images of any lot submitted by the seller for sale, whether or not in conjunction with the sale, and to use such photographs and illustrations at any time and in their sole and absolute discretion. The copyright of all photographs taken and illustrations made of any lot by Strauss & Co shall be the sole and absolute property of Strauss & Co and Strauss & Co undertakes to abide by all copyright applicable to any and all lots submitted for sale. 3.10.  Unsold lots 3.10.1.  Strauss & Co are authorised to retain any objects not sold on auction for a period of seven days af- ter the auction and may proceed to sell any such unsold lot during this period, be it by way of pri- vate treaty or otherwise subject to the provisions of clause 2.1. 3.10.2.  Where any lot remains unsold, Strauss & Co shall no- tify the seller accordingly and the seller shall collect the lot at the seller’s expense within seven days after despatch by Strauss & Co of a notice to the effect that the lot has not been sold. 3.10.3.  In these circumstances, the seller must make ar- rangements either to re-offer the lot for sale or to collect and pay all recoverable expenses and other amounts for which the seller is liable. 3.10.4.  Should the seller fail to collect the lot within seven days of notification, the seller shall in addition be responsible for all removal, storage and insurance expenses. 3.10.5.  Should the seller fail to collect the lot within six months of date of the notification referred to above, Strauss & Co shall be authorised to sell the lot by private treaty or public auction, on such terms and conditions as they think fit, without reserve and to deduct from the hammer price all sums owing to Strauss & Co, including (without limitation) storage, removal, insurance expenses, the expenses of both auctions, reduced commis- sion in respect of the auction as well as commis- sion on the sale and all other reasonable expenses, prior to remitting the balance to the seller or, in the event he cannot be located, placing it into a bank account in the name of Strauss & Co for and on behalf of the seller. 3.10.6.  Strauss & Co reserves the right to charge commis- sion in accordance with the current rates on the bought in price and expenses in respect of any unsold lots. 4.  GENERAL PROVISIONS  4.1.  Strauss & Co uses information supplied by bidders or sellers, or otherwise lawfully obtained, for the provi- sion of auction related services, client’s administra- tion, the bidders’ record, marketing and otherwise as required by law.  4.2.  The bidder and seller agree to the processing of their personal information and to the disclosure of such in- formation to third parties worldwide for the purposes outlined in clause 3.1 . Strauss & Co will process all bidder and seller personal information in terms of its privacy policy and will not use such personal informa- tion for any purpose other than as stated in its privacy policy nor shall it provide such personal information to any third party without the bidder’s or seller’s prior consent.  4.3.  Any representation or statement by Strauss & Co in any catalogue as to authorship, genuineness, origin, date, providence, age, condition or estimated selling price is a statement of opinion. Every person interest- ed should rely on his own judgement as to such mat- ters and neither Strauss & Co nor its agents or servants are responsible for the correctness of such opinions, subject to clause 2.3.1.  4.4.  Strauss & Co will have the right, at its sole and abso- lute discretion, to refuse entry to its premises or at- tendance at its auction by any person.  4.5.  These general conditions of business, every auction and all matters concerned therewith will be governed by and construed in accordance with the laws of South Africa and the buyer submits to the non-exclu- sive jurisdiction of the South African courts.  4.6.  If any of these conditions of business are held to be unenforceable, the remaining parts shall remain in force and effect.  4.7.  The non-exercise of or delay in exercising any right or power of a party does not operate as a waiver of that right or power, nor does any single exercise of a right or power preclude any other or further exercise of it or the exercise of any other right or power. A right or offer, to divide any lot, to combine two or more lots, to withdraw any lot from an auction, to determine the description of lots (whether in any catalogue or otherwise), to store accepted objects at the auction premises or any other location as he may deem fit and whether or not to seek the opinion of experts.  3.1.5.  Strauss & Co shall not be under any obligation to disclose the name of the buyer to the seller, save for the circumstances contemplated elsewhere in these general conditions of business. 3.2.  Estimated selling range and descriptions  3.2.1.  Any estimated selling range provided by Strauss & Co to the seller is a mere statement of opinion and should not be relied upon as a true reflection of the hammer price which a lot may achieve at a sale. Strauss & Co reserves the right to revise the estimat- ed selling range at any time.  3.2.2.  The seller acknowledges that Strauss & Co is entitled to rely on the accuracy of the description of a lot as provided by or on behalf of the seller.  3.2.3.  Strauss & Co shall not be liable for any error, mis- statement or omission in the description of a lot (whether in any catalogue or otherwise), unless Strauss & Co, its employees or agents, engaged in intentional misleading or deceptive conduct.  3.2.4.  Where a seller insists on estimate or reserve that is higher than those provided by Strauss & Co special- ists and not in line, in the opinion of Strauss & Co (in its absolute discretion), with market-related values, Strauss & Co reserves the right to charge a“bought- in” or “unsold fee”, in addition to the recovery of all expenses (including, but not limited to, photogra- phy, insurance and catalogue costs) incurred by Strauss & Co in respect of such lot. 3.3.  Warranties of the seller  3.3.1.  The seller warrants to Strauss & Co and to the buyer that: 3.3.1.1.  he is the true owner of all objects submitted for sale and/or is properly authorised by the true owner to do so, and that he is able to transfer good and marketable title to all such objects, free from any encumbrances and other third party claims, to the buyer of the lot of which those objects form part; 3.3.1.2.  he has complied with all requirements, legal or otherwise, in relation to the sale and any export or import of the lot, if applicable, and has notified Strauss & Co in writing of any failure by third parties to comply with such requirements in the past; 3.3.1.3.  the lot and any written provenance given by the seller are authentic; 3.3.1.4.  the lot is fit for its purpose and safe if used for the purpose for which it was designed and is free from any defect not obvious on external inspection; and 3.3.1.5.  to the extent that the seller required any approval, licence, consent, permit or clearance by law to be in possession of any lot or for the sale of any lot, he is in possession of a valid approval, licence, consent, permit and clearance.  3.3.2.  Notwithstanding any other provision of these general conditions of business, none of the seller, Strauss & Co, its servants or agents is responsible for errors of description or for the authenticity of any lot, and no warranty whatever is given by Strauss & Co, its servants or agents, or any seller to any buyer in respect of any lot (save insofar as the seller is concerned as set out in clause 2.1.1), and all express or implied conditions or warranties are hereby excluded.  3.3.3.  The seller of any object forming part of a lot not held by Strauss & Co at the auction premises warrants and undertakes to Strauss & Co and the buyer that the relevant object will be available and in a deliver- able state on demand to the buyer.  3.3.4.  The seller agrees to indemnify and keep indemni- fied Strauss & Co and the buyer against any loss or damage suffered by either in consequence of any breach of any warranty in these general conditions of business.  3.3.5.  The seller agrees that Strauss & Co may, at its abso- lute discretion refuse to sell any object submitted for sale, irrespective of any previous acceptance to sell. The seller further accepts that Strauss & Co is under no obligation to provide reasons in relation to the refusal thereof.