This document sets out the terms and conditions on which (i) Brightwells Limited advertises, auctions and/or sells Motor Vehicles, and (ii) any contract for the sale and/or purchase of a Motor Vehicle entered through an auction or a private sale conducted by Brightwells will take effect. The provisions of this document applies to auctions and contracts for sale entered into whether at one of our auction centres or otherwise, and whether the auction or contract for sale is conducted/entered into in person or remotely (i.e. via telephone or online).
By registering to take part in any auction conducted by Brightwells or by making an offer to purchase any vehicle that we advertise for sale, you are agreeing to these terms and conditions.
Please read the provisions of this document carefully, including the definitions section immediately below as the definition of the term ‘Motor Vehicle’ contained therein prescribes the scope and application of this document.
These terms and conditions should be read in conjunction with Brightwells’ ‘General Conditions of Sale’ as in force from time to time. Where you are bidding for or purchasing an item via www.brightwells.com you should also refer to our ‘Online Auction Terms and Conditions’. The entirety of this document, our ‘General Conditions of Sale’ and (if relevant) our ‘Online Auction Terms and conditions’ will apply to your interactions with Brightwells, any bids placed during an auction conducted by Brightwells, any contracts for sale entered into as a result of such an auction, and any private sale conducted by Brightwells.
In the case of any inconsistency between this document and Brightwells’ ‘General Conditions of Sale’, the provisions of this document shall prevail. The provisions of our ‘Online Auction Terms and conditions’ will, where relevant, take precedence over this document.
In this document:
1.1 “Auction” means the auction sale in respect of which a Lot is consigned for sale.
1.2 “Auctioneer” means the representative of Brightwells (whether our agent, employee or otherwise) conducting the Auction.
1.3 “Brightwells” means Brightwells Limited
1.4 “Buyer” means the person to whom a Lot is knocked down by the Auctioneer
1.5 “Buy It Now” means a Motor Vehicle sold by Brightwells on the Seller’s behalf having a fixed price and sold in accordance with Clause 12.2
1.6 “Catalogue” includes any advertisement, brochure, late entry list, estimate, price list or other publication
1.7 “Commission” means the percentage of the Hammer Price payable by the Seller in consideration for Brightwells’ services.
1.8 “Expenses” in relation to the sale of any Lot means Brightwells’ charges and expenses for removal, storage, insurance, illustrations, cataloguing costs, special advertising, packing, freight, any Published Charges of that Lot, any VAT on the forgoing and any Encumbrance that we are required to pay. “Expenses” also include any removal, storage and/or insurance costs that we are entitled to charge under Clause 32.
1.9 “Encumbrance” means any encumbrance or security interest of any kind whatsoever including without limitation a mortgage, charge, pledge, lien, hypothecation, restriction, right to acquire, right or pre-emption, option, conversion right, third party right or interest, right of set-off or counter-claim, equity, trust arrangement or any other type of preferential agreement (such as a retention of title arrangement) having similar effect or any other rights exercisable by or claims by third parties
1.10 “Hammer Price” means the price in pounds sterling at which a Lot is knocked down by the Auctioneer.
1.11 “Indemnity Fee” means the percentage of the Hammer Price (together with VAT thereon) payable by the Buyer in accordance with the provisions of this document and the “Indemnity Information” section of the bidder’s registration form.
1.12 “Lot” means any item(s) consigned with the view to its or their sale at auction
1.13 “Motor Vehicle” means any form of motorised transportation for persons and/or goods including by not limited to cars, vans, trucks, pick-up trucks, lorries, buses, coaches, motorbikes, boats, jet skis and hovercraft. It also means any item included or proposed to be included in a sale of a Motor Vehicle, and any item designed to be pulled, carried or towed by a Motor Vehicle such as trailers, roof rails/racks/boxes and horse boxes.
1.14 “Our Site” means www.brightwells.com
1.15 “Provisionally Sold” means the allocation by the Auctioneer under Clause 22.1 for sale under the mechanism in Clause 22.
1.16 “Published Charges” means such charges from time to time published by Brightwells. A copy of our Published Charges is available at [insert hyperlink].
1.17 “Purchase Price” means the Hammer Price together with VAT thereon, the Indemnity Fee and any additional charges or Expenses due from any Buyer.
1.18 “Reserve” means the minimum Hammer Price agreed between Brightwells and the Seller at which a Lot may be sold
1.19 “Sale Proceeds” means the net amount due to the Seller being the Hammer Price less the Seller's commission, any VAT thereon, Expenses and any other amount due to Brightwells from the Seller
1.20 “Seller” means the person who offers a Lot for sale
1.21 “Seller's Commission” shall have the definition given in Clause 9
1.22 “Trade Account” means an account approved by Brightwells for a registered motor trader who has provided the necessary documentation for proof of identity and trade status.
1.23 “VAT” means Value Added Tax applicable at the prevailing rate from time to time
1.24 “We” or “Us” is a reference to Brightwells Limited.
THE ROLE OF BRIGHTWELLS
Brightwells as Agent
2.1 Except where it is expressly stated in writing that we are acting as principal, our role in any auction or private sale is as agent for the Seller.
2.2 We are not liable for any act or default by the Seller or the Buyer.
2.3 We give no warranty or assurance as to the satisfactory performance by either the Seller or Buyer with these terms and conditions or as to any of the terms generally of any contract for sale and/or purchase. The Buyer’s sole remedy for any negligence, misrepresentation or breach of contract is against the Seller, and vice versa.
Brightwells Conduct of Auctions
3.1 We shall be free to conduct all auctions and private sales (whether on our premises or otherwise, in person or online) in such manner as we in our absolute discretion see fit.
3.2 We have the right at our sole discretion to refuse any bid, to divide any Lot, to combine two or more Lots, to withdraw any Lot and, in the case of dispute, to put any Lot up for auction again.
3.3 The bidding increments at any Auction will be determined by the Auctioneer at their sole discretion.
Disputes between Buyer and Seller
4.1 If we are notified about an alleged breach of any of these Clauses by a Seller before we have remitted the Sale Proceeds to that Seller, we may at our sole discretion withhold payment until that dispute is resolved.
4.2 In the event that payment is withheld under Clause 4.1, we may deduct any sums that are due to us (including in particular any Expenses or Commission) from the sum held.
4.3 If we are notified about an alleged breach of any of these Clauses by a Buyer, we reserve the right to prevent that Buyer from taking part in future auctions and to refuse any Bids from that Buyer for any Lot or Lots, whether within an auction or for a private sale, in either case whether in person or online.
4.5 We may at our absolute discretion arrange for or allow the storage of Lots whilst any dispute between a Buyer and a Seller is resolved. Where this occurs, we shall be entitled to charge the party in default for the removal, storage (either at our premises or otherwise) and/or insurance of the Lot or Lots in question in accordance with Clause 32.
4.6 Provisions for the resolution of disputes are contained at Clause 33 below. The ‘party in default’ for the purposes of Clause 4.5 will be determined according to the procedure in Clause 33.
Warranty by Seller
5.1 The Seller warrants to us in the terms of sub-paragraphs 5.1.1 to 5.1.8 below and to the Buyer in the terms of sub paragraphs 5.1.1, 5.1.5 and 5.1.6 below that:
5.1.1 The Seller is the owner of the Lot or is properly authorised to sell the Lot by the owner and is able to sell the Lot with full title guarantee, and free from all or any encumbrance;
5.1.2 Any Motor Vehicle provided for sale may lawfully be used on a public road and complies with all statutory provisions as in force at the material time;
5.1.3 The Seller has in their possession and will provide to the Buyer at the time of delivery any test certificate required by law in relation to the use of the Motor Vehicle on public roads;
5.1.4 The Seller has notified us in writing of any material alterations to the Lot of which the Seller is aware and of any concerns expressed by third parties in relation to the authenticity, provenance, origin, age, condition or quality of the Lot and has provided Brightwells with all such information in the Seller's possession;
5.1.5 The information about any Lot given to us, and that any statements about the lot made either to us or the Buyer, are true;
5.1.6 The Seller has complied with all requirements relating to any export or import of the Lot and has notified Brightwells in writing of any failure to comply with such requirements by the Seller or any previous owner of the Lot;
5.1.7 The Seller shall indemnify us and the Buyer against all losses, expenses or other costs which are caused by the Seller's breach of any obligation under these terms and conditions, including in particular any breach of the warranties given at Clauses 5.1.1 to 5.1.6 above;
5.1.8 They are acting on behalf of a business (be it a sole trader, partnership or limited company) acting in the course of its business.
5.2 The warranties at Clauses 5.1.2 and 5.1.3 shall not apply where the Seller has notified us otherwise in writing prior to the Motor Vehicle being advertised for sale.
Roadworthiness and Safety Recall Notices
6.1 The Seller is responsible for declaring whether any Motor Vehicle is not roadworthy and if any Manufacturer Safety Recall Notices are incomplete at the time of sale.
6.2 Absent notification in writing by the Seller that any Motor Vehicle is not roadworthy and/or as the case may be that any Manufacturer Safety Recall Notices are incomplete, both we and the Buyer are entitled to assume that the Motor Vehicle is roadworthy and that any Manufacturer Safety Recall Notices have been completed/complied with.
6.3. We are not responsible for ascertaining the roadworthiness of any Motor Vehicle or for ensuring that any Manufacturer Safety Recall Notices have been completed/complied with, and give no warranties or assurances to either the Buyer or the Seller in that respect.
6.4 Buyers must raise any disputes about roadworthiness before removing the Motor Vehicle in question from the relevant auction site.
6.5 The Seller shall be liable to indemnify us and the Buyer against all losses, expenses or other costs which are caused by the Seller's failure to provide us with any relevant notification under Clauses 6.1 and 6.2.
7.1 All Lots will be sold without Reserve unless a Reserve has been agreed by us in writing.
7.2 The Seller of any Lot may request that a Reserve is placed on the Lot by giving written notice to the Auctioneer not less than one hour before the commencement of the Auction.
7.4 Once a Reserve has been placed by the Seller, it may not be changed without our written consent.
7.5 Where a Reserve has been agreed, the Seller may bid on a Lot. If the Seller makes such a bid, then the Auctioneer may at their absolute discretion knock the Lot down to the Seller without observing any Reserve.
7.6 Where a Reserve is agreed but not attained, the Auctioneer may allocate the Lot as being Provisionally Sold and the provisions of Clauses 12.1 and 22 shall operate.
7.7 If no Reserve has been placed on a Lot, we shall in not be held liable should the Lot be purchased for a price below any lowest estimated selling price of the Lot: (i) given in any Catalogue, or (ii) provided by us or any or our employees or agents prior to the Auction.
7.8 The Seller shall not be allowed to set the Reserve above the lower estimate published in the Catalogue without: (i) our permission and (ii) the announcement of a revised estimate to suit this Clause at the time of sale.
7.9 We and/or the Auctioneer may refuse to place a Reserve on any Lot where, in our view and/or the view of the Auctioneer, there is a good reason to do so.
Commission and Expenses
8.1 We shall be entitled to deduct from the Hammer Price and retain the Commission (plus VAT thereon) and any Expenses and any other sums due from the Seller to us.
8.2 Our Commission shall be calculated as follows:
8.2.1 As individually agreed between us and the Seller prior to the Auction; failing which
8.2.2 As advertised on Our Site from time to time; failing which
8.2.3 10% of the Hammer Price.
8.3 The Seller acknowledges our right to retain the Indemnity Fee payable by the Buyer in accordance with Clause 23.
8.4 The Seller remains liable for payment of our Commission and Expenses notwithstanding any late, part or non-payment by the Buyer.
Photography and Illustrations
9.1 The Seller permits us without payment to photograph and make illustrations of any Lot and to use at our discretion any photograph or illustration of or in respect of a Lot supplied by the Seller, whether or not in conjunction with the Auction.
9.2 The copyright in all photographs taken and illustrations made of any Lot by or on our behalf shall belong to us.
10.1 We make or give no warranty or representation as to the anticipated or likely selling price of any Lot. The selling price of any Lot is outside of our control and will be determined solely by the potential buyers present at any auction.
10.2 Any estimate given by us, whether written or oral and whether or not printed in any Catalogue, as to the estimated selling price of any Lot is a statement of opinion only and should not be relied upon as an indication of the actual selling price.
10.3 We reserve the right at our absolute discretion to revise or alter any anticipated or likely selling price given by us.
10.4 We shall not be liable to the Seller, whether in negligence, breach of contract, misrepresentation or otherwise should a Lot fail to achieve any estimated, anticipated or likely selling price that we provide.
10.5 If a Seller does not wish to sell a Lot below a certain price then they must agree a Reserve in accordance with Clause 7 (above).
Descriptions of Lots
11.1 We shall not be liable to the Seller for any error, mis-statement in or omission from the description of any Lot in any Catalogue where:
11.2.1 We have been provided with such description by the Seller or any person on his behalf; or
11.2.2 We have provided the Seller with a copy of such description prior to publication of the Catalogue and neither the Seller nor any person on his behalf have notified us in writing within 7 days of any error or misstatement in or omission from the description.
11.2 We have no duty to either the Seller or the Buyer to investigate the accuracy of the description of any Lot provided by or on behalf of the Seller.
Unsold Lots: Provisional Sales and Buy It Now
12.1 Where a Lot has not reached its Reserve, the Auctioneer may in his absolute discretion allocate the Lot as Provisionally Sold to the highest bidder. Where this occurs, the provisions of Clause 22 will apply.
12.2 Where the Seller instructs us to sell a Lot for a fixed price, we shall allocate the Lot to our “Buy it Now” scheme and use our reasonable endeavours to sell the Lot on behalf of the Seller at the price sought by the Seller together with the Indemnity Fee thereon.
12.3 The operation of the “Buy It Now” scheme shall be subject to the additional terms and conditions contained within the “Buy It Now” Catalogue.
12.4 Any sale by private treaty, whether following a Provision Sale, under the “Buy It Now” scheme or otherwise, shall be subject to the payment of:
12.4.1 Commission and Expenses by the Seller in accordance with Clause 8; and
12.4.2 The Indemnity Fee by the Buyer in accordance with Clause 23; as if the Lot had been sold via auction.
13.1 The Lot shall at all times remain at the risk of the Seller until ownership of the Lot passes from the Seller to the Buyer under these Terms and Conditions.
13.2 We will not be responsible for any damage to or the loss or the destruction of any Lot unless caused by our negligence or that of our employees or agents acting in the ordinary course of their duties.
13.3 The Seller will indemnify us against all claims and proceedings brought against us in respect of any loss or damage to any Lot.
13.4 We will not be liable for any injury, loss or damage caused by any Lot unless caused by our negligence or that of our employees or agents acting in the ordinary course of their duties.
13.5 The Seller will indemnify us against all claims and proceedings brought against us in respect of any such injury, loss or damage.
Payment of Sale Proceeds
14.1 Where the Lot is not subject to any Encumbrance, we shall pay the Sale Proceeds to the Seller not later than 14 days after the Auction providing that the Purchase Price has been received by us in full.
14.2 Where the Lot is subject to any Encumbrance, we shall discharge the same from the Sale Proceeds and shall pay the net Sale Proceeds (if any) to the Seller not later than 14 days from the date on which we receive a certificate of discharge from the holder of the Encumbrance.
14.3 Unless an alternative method of payment has been agreed by us in writing, payment to the Seller shall be made by cheque. Cheques shall be sent by first class post at the Seller's risk.
14.4 If the Purchase Price has not been received in full by us within the time specified in Clause 14.1, we will pay the Sale Proceeds to the Seller within five working days after the date on which the Purchase Price is received in clear funds from the Buyer.
14.5 We reserve the right not to remit the Sale Proceeds to the Seller unless the Seller has deposited with us the V5 or V5C registration document in the case of a UK registered vehicle or, in the case of a non-UK registered vehicle, the appropriate documents of title relevant and appropriate to the country of registration of the vehicle, and any other documentation relating to the vehicle in the Seller's possession or control which he agreed with us to supply.
14.6 We further reserve the right to withhold any monies due to the Seller and to rescind the contract for sale if, in our opinion, the Buyer is not a bona fide Buyer and/or incapable of making a contract; i.e. not being sound of mind, being in collusion with the Seller or being under the influence of drink or drugs.
14.7 We may deduct or set-off from the payment of any Sale Proceeds, any sum or sums that we are owed by the Seller, whether arising from these terms and conditions or otherwise.
Non-Payment by the Buyer
15.1 If the Buyer fails to pay the Purchase Price within 14 days of the Auction, we will notify the Seller who may instruct us as to the appropriate course of action. We will endeavour to assist the Seller, but will not be under an obligation to take any particular step or steps, and shall not in particular be obligated to institute or issue proceedings in our own name.
15.2 In the absence of any written instructions from the Seller within 7 days of notification under Clause 15.1, we shall be entitled to do any one or more of the following:
15.2.1 To agree terms with the Buyer for the payment of the Purchase Price (or the constituent elements thereof);
15.2.2 To remove, store and insure the Lot at the Seller’s expense. This shall include charging the Seller for the removal, storage and/or insurance of the Lot in accordance with Clause 32;
15.2.3 To settle claims and/or proceedings made by or against the Buyer;
15.2.4 To issue legal proceedings, either in the name of the Seller or in our own name, to recover payment of the Hammer Price and/or the Purchase Price and/or any of the constituent parts thereof;
15.2.5 Where appropriate to rescind the sale and refund any monies to the Buyer;
15.2.6 To offer the Lot for re-sale, by auction or private treaty, with or without Reserve;
15.2.7 To take any such steps we shall in our absolute discretion consider necessary to collect the monies due from the Buyer; and
15.2.8 To appoint a solicitor and/or other agent to pursue any of the courses of action referred to above.
15.3 The Seller hereby authorises us to take any of the courses referred to in Clauses 15.2.1 to 15.2.8, and warrants that it will provide such assistance, including if appropriate the signature or execution of documents, as we may deem necessary in seeking recovery of the Hammer Price and/or the Purchase Price and/or any of the constituent parts thereof.
15.4 We shall not owe any duty of care (whether in tort, contract or otherwise) to the Seller in deciding whether or not to take any of the courses of action outlined in Clause 15.2. Any action, or any lack thereof, shall be a matter for our absolute discretion.
15.5 We shall further not owe any duty of care (whether in tort, contract or otherwise) in relation to the conduct of any of the courses of action outlined in Clause 15.2. Our conduct of any course of action that we should deem appropriate, including any decision as to the terms of any agreement with the Buyer, will again be a matter for our absolute discretion.
15.6 In addition to the courses of action under clause 15.2, we may also require the Seller to assign to us any cause of action it may have against the Buyer in respect of the non-payment of the Hammer Price and/or any other sums payable to it by the Buyer. The Seller hereby warrants and confirms that it will carry out all steps necessary to effect such assignment and agrees that, absent such cooperation, we may carry out such steps on its behalf.
15.7 It is agreed that consideration for any assignment under Clause 15.6 will be provided by our agreement to distribute any funds received from the Buyer as provided for in Clause 15.8.
15.8 Any monies recovered by and/or paid to us in consequence of our taking one or more of the steps referred to in Clause 15.2, or by taking an assignment of the Seller’s cause of action under Clause 15.6 and pursuing the Buyer in our own name, shall be applied to the payment of the follow items in the following order:
15.8.1 Legal or other costs incurred by us in connection with such steps;
15.8.2 Our Expenses;
15.8.3 The Buyer's Indemnity Fee;
15.8.4 The Seller's Commission;
15.8.5 Any balance remaining shall be paid by us to the Seller (or, if appropriate, the Buyer). In the event that there shall be a shortfall, any such shall be made good by the Seller to us on demand.
15.9 In addition to the courses of action at Clause 15.2 and 15.6, we may also where the Seller fails to provide us with written instructions within 7 days of notification under Clause 15.1, rescind the contract between the Buyer and the Seller, and purchase the Lot ourselves. Should this occur:
15.9.1 We will provide the Seller with written notification of our decision within 14 days of our communicating to the Buyer that the contract has been rescinded;
15.9.2 We will make payment of the Hammer Price with a further 14 days of notification of our election under clause 15.9.1;
15.9.3 We will be entitled to deduct from the Hammer Price a sum equal to the Commission and Expenses which we would have been payable had the contract not been rescinded; and
15.9.4 Payment will be made by cheque, to be sent via first class post at the Seller’s risk.
15.10 In the event that within 7 days of receipt of the notice referred to in Clause 15.1 the Seller informs us that he wishes to take re-delivery of the Lot, he shall be entitled to do so but only upon prior payment of:
15.10.1 Our Commission (which shall remain payable on the Hammer Price notwithstanding that the Purchase Price has not been paid by the Buyer) and Expenses;
15.10.2 Any and all legal and other costs incurred by us following non-performance by the Buyer, including any costs or expenses payable to the Buyer as a result of action taken against him/her/them; and
15.10.3 Any and all removal, storage and/or insurance costs that we have incurred.
15.11 For the avoidance of doubt, Clause 15 applies both to the Seller and the Buyer, and the Buyer hereby accepts our authority, capacity and standing to take any of the steps referred to at Clauses 15.2 and 15.6. In particular the Buyer accepts that:
15.11.1 We are able to agree payment terms and/or to settle proceedings on the Seller’s behalf;
15.11.2 We are able to bring proceedings either in the Seller’s name or in our own name to seek payment of the Hammer Price and/or the Purchase Price and/or any constituent part or element thereof (n.b. this is in addition to any claim we may have in our own name for payment of any Expenses and/or the Indemnity Fee); and
15.11.3 We may take an assignment of the Seller’s cause of action against the Buyer for payment of the Purchase Price.
16.1 The Seller may by notice in writing to us withdraw any Lot from the Auction.
16.2 If the Seller removes any Lot from the Auction prior to the publication of the Catalogue, he shall be liable to pay us the greater of:
16.2.1 5% of the estimated value of the Lot; or
16.2.2 An amount equal to the Commission (i.e. the commission we would have payable by the Seller and/or deductable from the Hammer Price) as if the Lot had sold at the Auction for its estimated value;
plus VAT thereon any our Expenses.
16.3 If a Lot is withdrawn after a Catalogue referring to the Lot shall has been published, the Seller shall be liable to pay us a sum equal to the fee set out by Clause 16.2, plus an amount equivalent to the Indemnity Fee that would have been payable by the Buyer (plus VAT thereon) had the Lot sold for its estimated value.
16.4 For the purposes of Clauses 16.2 and 16.3, the estimated value of any Lot is the greater of:
16.3.1 The Seller's estimate of value as previously notified to us (if more than one figure has been provided, the highest will be used); or
16.3.2 The value estimated in the Catalogue (if more than one figure is given, the highest figure).
16.5 In the event that the Seller withdraws any Lot from the Auction, the Seller shall arrange for collection and removal of the Lot at his own expense within two working days after the date of withdrawal.
16.6 The Seller may not collect any Lot unless and until any withdrawal fee payable under Clauses 16.2 or 16.3 (as applicable) has been paid in full.
16.7 In the event that the Seller does not remove the Lot within two working days, and/or is unable to remove the Lot by operation of Clause 16.6, we may at our absolute discretion charge the Seller for the removal, storage (either at our premises or otherwise) and/or insurance of the Lot in accordance with Clause 32.
16.8 We may set off any monies due to us from the Seller (including without limitation withdrawal fees and any costs incurred by us under Clause 15) against any sale proceeds due to the Seller in respect of the same or any other Lot deposited with us by the Seller.
Refusal to Sell
17.1 If we have reasonable cause for believing that either the Seller is in breach of any one or more of the requirements or warranties set out in Clauses 5 and 6, and/or that the Seller may be restrained by Order of any Court or other competent authority from selling the Lot, we may by giving notice in writing to the Seller decline to sell the Lot and Clause 16 shall apply as if the notice from us were a withdrawal of the Lot by the Seller.
17.2 The Seller shall reimburse us any legal or other costs reasonably incurred by us in investigating any claim concerning the ownership of a Lot and/or the Seller's right to sell the Lot, the accuracy of the description of the Lot contained in the Catalogue or in defending any claim relating thereto.
17.3 We shall be entitled to charge the Seller for the removal, storage (either at our premises or otherwise) and/or insurance of the Lot in accordance with Clause 32 for the duration of any of the investigations details at Clause 17.2.
17.4 We shall be entitled to withhold the amount of such costs or expenses due to us under Clauses 17.2 and 17.3 from any payment due to be made to the Seller in accordance with Clause 14.
Removal and Storage
18.1 The Seller shall arrange for the removal of any unsold lot by noon the third day following the Auction or by such other time as agreed by us.
18.2 If the Seller fails to remove any unsold Lot, we may at our absolute discretion remove, storage and/or insure the Lot and charge the Seller for the removal, storage and/or insurance of the Lot in accordance with Clause 32.
Bidding on Own Lots
19.1 Subject to the provision of Clause 7, Sellers may bid on Lots that they have presented for auction. Sellers should notify the Auctioneer prior to bidding of their intention to bid.
19.2 The Seller may bid either personally or through the agency of any one person. Further:
19.2.1 The Seller may bid through the Auctioneer acting as the seller’s agent; and
19.2.2 Any sale to the Seller may be subject to a reserve price irrespective of whether the Lot is or is not subject to a Reserve. Where this is the case, we will notify the Seller of any reserve price in advance of the Auction.
19.3 Where a Lot is knocked down to or otherwise sold to the Seller, the Seller shall be treated as a Buyer (in addition to a Seller) for the purposes of these terms and conditions. The Seller shall therefore be liable to pay us the Indemnity Fee payable on the purchase of the Lot, in addition to the Commission and any Expenses payable on its sale.
Participation in Auctions
20.1 No person shall be entitled to bid at an Auction without first having completed and delivered to us a bidder's registration form together with such deposit as we may in our absolute discretion require.
20.2 The level of deposit required in order to take place in any Auction shall be advertised either through the online bidding portal on Our Site or at the cash office at the Auction Site at which the Auction is taking place.
20.3 Every bidder shall be deemed to act as principal unless prior to the commencement of the Auction there is a written acceptance by us that a bidder acts as agent on behalf of a named principal.
20.4 Where a bidder acts as an agent, they do so on the basis that these terms and conditions will apply to their principal.
20.5 Notwithstanding that a bidder may be acting as agent for a named principle, both the agent and his principal shall jointly and severally liable on any contract for sale, and both shall be treated as the Buyer for the purposes of this document.
20.6 These provisions apply both in respect of principals who are individuals and principals who are partnerships, limited companies or any other type of corporation (e.g. the employee or agent of any limited company will need our written confirmation that they bid on behalf of their employer rather than on their own behalf).
20.7 In all cases, Buyers warrant that in taking place in any auction, or in seeking to purchase any Lot that we advertise for sale, that they do so on behalf of a business (be it a sole trader, partnership or limited company) acting in the course of its business.
Purchase of Items
21.1 Any bid made during an Auction shall remain open for acceptance by the Auctioneer (as agent of the Seller) until the end of the Auction.
21.2 The Buyer shall be the highest bidder at end of the Auction.
21.3 Where a Lot is knocked down and the Reserve (if any) has been met, the Auctioneer will declare the Lot as sold, thus concluding a contract between the Buyer and the Seller.
21.4 Where a Lot is knocked down but the Reserve has not been met, the Auctioneer may at his absolute discretion declare the Lot as being Provisionally Sold and the provisions of Clause 22 will apply.
21.5 Any dispute as to any bid, as to whether a Lot has been knocked down or at what price, or as to the identity of the Buyer, shall be settled by the Auctioneer at his absolute discretion.
21.6 We shall not be party to any contract for sale between a Buyer and a Seller and, in particular, shall not be liable for either party’s breach of the same.
21.7 Any contract for sale shall take effect upon the terms contained within this document and the further documents to which it refers.
22.1 Where the Auctioneer declares a lot to be “Provisionally Sold” the highest bid placed during the Auction will remain open for acceptance for a further 24 hours (“the Standing On Period”) following the conclusion of the Auction. During this period, the bid may be accepted on behalf of the Seller by the Auctioneer or any other representative of Brightwells.
22.2 During the Standing On Period, we shall take steps to contact the Seller and to ascertain whether they are willing to accept the bid notwithstanding that it does not meet the Reserve. Following confirmation from the Seller, we will notify the Buyer whether the Bid has been accepted or rejected by the Seller.
22.3 The Buyer’s bid will be deemed to have been rejected by the Seller if they are not given notice within the standing On Period that it has been accepted, unless that Standing On Period has been extended with the agreement of the Buyer.
22.4 Where the Buyer is notified within the Standing On Period that its bid has been accepted, a contract for the sale of the Lot will be formed between the Buyer and the Seller.
22.5 Clauses 21.6 and 21.7 shall apply to contracts formed under the mechanism under Clauses 22.1 to 22.4 (i.e. Provisional Sales) in the same way they do to contracts formed under Clause 21.3 (i.e. sales at the fall of the hammer).
23.1 Where a contract for sale is concluded between a Buyer and a Seller (whether as a result of an item being knocked down during an Auction and being declared sold, or via the Provisional Sale mechanism set out within Clause 22), the Buyer shall pay us the Indemnity Fee.
23.2 The Indemnity Fee remains payable by the Buyer notwithstanding any dispute that may arise between the Buyer and the Seller and/or any subsequent rescission or cancellation of the contract between the Buyer and the Seller.
23.3 The Buyer hereby acknowledges and accepts our entitlement to receive the Seller's Commission due under Clause 8 and payment of any Expenses in addition to the Indemnity Fee.
23.4 The Buyer further acknowledges and accepts that we have a contractual entitlement to payment of the Indemnity Fee and any Expenses incurred on the Buyer’s behalf (including removal, storage and/or recovery charges payable under Clause 32), and that we may sue in debt for payment of the Indemnity Fee and/or any Expenses in our own right.
24.1 Immediately a Lot is sold (whether under Clause 21.3, Clauses 22.1 to 22.5 or otherwise), the Buyer shall:-
24.1.1 Give to us his name and address and, if so requested, proof of identity if he has not already done so; and
24.1.2 Pay to us the Purchase Price unless credit terms have been agreed in writing before the Auction.
24.2 Full payment for all Lots must be made to us by means of bankers draft, cash (to a Sterling equivalent of €15,000 with the prior agreement with the Auctioneer, otherwise a maximum of £3,000 in any rolling 90 day period), telegraphic transfer, debit or credit card in pounds sterling or the currency in which the sale was conducted.
24.3 Buyers should be aware that:
24.3.1 An additional fee will be charged on all payments made by cash or credit card. The amount of such additional payment will be as contained within our Published Charges at the relevant time; and
24.3.2 Payments by cheque will only be accepted where we have agreed before the Auction to accept the same.
24.4 No Lot may be collected until the Purchase Price has been received by us. In the case of payments made by cheque, this means the receipt of cleared funds following the cashing of the cheque.
24.5 Payments by a Buyer may be applied by us towards any sums due from that Buyer to us on any account, notwithstanding any directions (whether express or implied) to the contrary by the Buyer or his agent.
Passing of Ownership & Risk
25.1 The ownership of the Lot will pass to the Buyer only when the Purchase Price in cleared funds has been received by us.
25.2 Immediately a Lot is sold, the risk (i.e. the risk of damage or destruction of the Lot, or of injury, loss or damage caused by it) shall pass to the Buyer notwithstanding that possession will not be given and ownership will not pass to the Buyer before payment of the Purchase Price.
25.3 We will not be responsible for any damage to or the loss or the destruction of any Lot, or for any injury, loss or damage caused by the Lot unless caused by our negligence, or that of our employees or agents whilst acting in the ordinary course of their duties.
25.4 The Buyer will indemnify us against all claims and proceedings brought against us in respect of any loss or damage to the Lot or injury, loss or damage caused by it.
Removal of Purchases
26.1 The Buyer shall, at his own expense, remove any Lot purchased:
26.1.1 By the date and time for removal agreed with us; or where none is agreed
26.1.2 By the date and time the day and time specified on the bidder’s registration form; or where none was specified
26.1.3 By noon the third day following the Auction
but in and event, not before payment in full to us of the Purchase Price for the Lot as well as payment of any sums owed (either to us or the relevant Seller) in respect of any other Lot.
27.1 If the Purchase Price is not paid in full in accordance with Clause 24.1, we shall at our absolute discretion, and without prejudice to any other rights either we or the Seller may have, be entitled to exercise one or more of the following remedies:
27.1.1 To charge interest at a rate not exceeding 1.75% per month on so much of Purchase Price as remains unpaid. Any interest charged will be applied on a pro rata basis to the constituent elements of the Purchase Price (i.e. the Hammer Price, the Indemnity Fee, any expenses etc) and divided between us and the Seller accordingly;
27.1.2 To remove, store (either at our premises or elsewhere) and insure the Lot at the expense of the defaulting Buyer in accordance with Clause 32;
27.1.3 To retain that or any Lot sold to the same Buyer at the same or any other auction and to release it only after payment of the total amount due;
27.1.4 To reject or disregard any bid or bids made by or on behalf of the defaulting Buyer at any future auction or to require payment of a deposit before any future bid made by or on behalf of that Buyer;
27.1.5 To apply any money due or to become due to the defaulting Buyer in or towards settlement of the total amount due; and
27.1.6 To exercise a general lien on any property of the defaulting Buyer that is in our possession for any purpose.
27.2 If the Buyer fails to make payment within 7 days after the date and time referred to in Clause 24.1, we shall at our absolute discretion and without prejudice to any other rights we may have, be entitled to exercise one or more of the following remedies:
27.2.1 To issue legal proceedings, whether in our own name or in that of the Seller, against the Buyer for debt and/or for damages for breach of contract;
27.2.2. To cancel the sale of that or any other Lot sold to the defaulting Buyer at the same or any other auction notwithstanding the total amount due in respect of such other Lot shall have been paid;
27.2.3 To re-sell the Lot or cause it to be re sold by public auction or private sale and, if this results in a lower price being obtained, the defaulting Buyer shall pay to us any deficiency. Where an increased price is achieved, such increase shall be retained by us.
27.3 Where we re-sell a Lot under Clause 27.2.3 we may charge the defaulting Buyer Commission and Expenses on the re-sale at the same rate payable under the initial sale. We may also charge the defaulting Buyer any costs and expenses incurred by or as a result of the re-sale. All such sums shall be payable by the defaulting Buyer forthwith.
27.4 Where we bring legal proceedings against the Buyer in the name of the Seller, we do so as the Seller’s agent, and the Buyer hereby acknowledges our authority, capacity and standing to litigate in that capacity.
27.5 Where we bring legal proceedings in our own name (save where there has been an assignment of the Seller’s cause of action), any claim in respect of the Hammer Price or any other sum due to the Seller is brought on behalf of the Seller, and the Buyer hereby acknowledges our authority, capacity and standing to litigate on that basis.
Failure to Collect
28.1 If a Lot is not collected by the date and time referred to in Clause 26.1, we shall at our absolute discretion be entitled to remove, store (either at our premises our elsewhere) and/or insure the Lot at the expense of the defaulting Buyer in accordance Clause 32.
28.2 The provisions of Clause 28.1 shall apply likewise in cases where the Buyer is unable to collect any Lot either because of his failure to pay the Purchase Price, or because we are exercising a lien over it in respect of any other sums due.
28.3 Where we have charged or incurred removal, storage and/or insurance costs, we will only release the Lot after payment of the same in addition to any other sums due.
28.4 If the Buyer has paid for and fails to collect the Lot within 14 days after the date and time referred to in Clause 26.1, we shall at our absolute discretion and without prejudice to any other rights we may have, be entitled to exercise one or more of the following additional remedies:
28.4.1 To cancel or rescind the sale of the Lot; and
28.4.2 To re-sell the Lot or cause it to be re-sold by public auction or private sale and to set off the total amount due in respect of that Lot against the sale proceeds and any surplus shall belong to the defaulting Buyer.
Liability of Brightwells and the Seller
29.1 The Buyer shall at his own expense satisfy himself as to the condition of any Lot and the veracity of any announcement made by the Auctioneer as to the condition of any Lot and the Buyer’s attention is specifically drawn to the “Statement of Condition” section of the bidder’s registration form.
29.2 We have to rely on information from the Seller as to the age, authenticity, suitability, provenance, attribution, origin, condition, fitness for purpose, merchantable or satisfactory quality, and/or roadworthiness of any Lot and we do not, and moreover cannot, undertake our own inspection of any Lots to establish whether they conform with the description in any Catalogue.
29.3 We give no warranty as to the accuracy of the description of any Lot in any Catalogue or any announcement made by the Auctioneer or as to the age, authenticity, suitability, provenance, attribution, origin, condition, fitness for purpose, merchantable or satisfactory quality, or roadworthiness of any Lot.
29.4 It is the responsibility of the Buyer to carry out such inspection as he thinks necessary to establish the age, authenticity, suitability, provenance, attribution, origin, condition, fitness for purpose, merchantable or satisfactory quality of any Lot or roadworthiness of any Motor Vehicle, and generally to ensure that the Lot complies with the description of the same given within any Catalogue. The Buyer bids on the understanding that he has inspected (or is deemed to have inspected) the Lot and agrees to take it with all faults and imperfections.
29.5 It shall be the responsibility of the Buyer to ensure that any Lot purchased at Auction complies with the appropriate statute or regulation for driving, using or transporting it and for ensuring that any necessary test certificate is in force.
29.6 The Buyer must raise any disputes about roadworthiness or compliance with the description contained within any Catalogue before leaving the relevance auction premises.
29.7 The raising of a dispute about roadworthiness or compliance with the description contained within any Catalogue does not affect the other obligations of the Buyer and the Seller under these terms and conditions. In particular, the Buyer is still obliged to pay the Purchase Price and to collect the Lot following the auction as required by the above Clauses.
29.8 In bidding for any Lot, the Buyer acknowledges that he does not rely on any representation made to him by us, and that he is responsible for carrying out his own enquiries.
30.1 Whilst the interest of prospective Buyers are best served by attendance at the Auction, we will if so instructed execute bids on behalf of prospective bidders.
30.2 We, our agents and employees, shall not be responsible for any default relating to telephone, fax or other absentee bids including without limitation any telecommunications fault or failure.
Value Added Tax
31.1 VAT payable by the Buyer on the Hammer Price may be refundable by H.M. Customs and Excise on proof of export. We give no warranties in this regard and prospective Buyers are advised to obtain their own taxation advice.
Storage of Lots
32.1 In certain circumstances prescribed above, we are at liberty to charge for the removal, storage (either on our premises or otherwise) and/or insuring any Lots that remain on our premises, in our possession, under our control, or over which we are exercising a lien.
32.2 Where we are entitled to charge for the removal and/or storage of Lots, we may at our absolute discretion either engage a third party to conduct the removal and/or storage (as appropriate) or we may undertake the removal and/or storage ourselves (as appropriate) ourselves.
32.3 Where we engage the services of a third party, we are entitled to reimbursement of that third party’s costs, plus the sum of £100 plus VAT to cover our own administration costs.
32.4 Where we conduct the removal and/or storage ourselves, we are entitled to charge for our time and for the use of our storage facilities at the rates set out within the Published Charges from time to time.
32.5 Where we take out additional or increased insurance cover, or we make changes to our own insurance cover to ensure that any Lots in our possession are covered, we are entitled to be reimbursed the costs we incur as a result, plus the sum of £100 plus VAT to cover our own administration costs.
32.6 Nothing within this Clause, or otherwise within this agreement, shall oblige us to insure Lots within our possession or control and Buyers and Sellers are referred to the relevant provisions above detailing where the risk in any goods in our possession and/or control lies.
32.7 The decision to remove, store and/or insure goods, and the means and cost of doing so are all matters within our absolute discretion and we do not accept any responsibility (whether in contract, tort or otherwise) for any decision to or not to remove, store and/or insure goods in our possession and/or control.
32.8 We are entitled to exercise a general lien against any Lots in our possession and/or control to secure payment of any removal, storage and/or insurance charges payable to us. We are further entitled to continue to charge for removal, storage and/or insurance of any Lots whilst it remains in our possession in furtherance of our operation of our lien.
33.1 In the event of a dispute about the road worthiness of a Motor Vehicle, or its compliance with the description carried in any Catalogue, we may at our absolute discretion nominate a third party to act arbiter of such dispute.
33.2 The Buyer and the Seller hereby confirm and accept that in the case of a dispute between then, that we are able to instruct and incur the fees of an arbiter.
33.3 Where we appoint a third party to act as arbiter, the costs and expense of such arbitration will be paid by the Buyer unless, in the opinion of the arbiter, the Motor Vehicle in question is not roadworthy or was mis-described in which case they will be paid by the Seller.
33.4 We may at our absolute discretion provide for the removal, storage (whether at our premises or otherwise) and/or insurance of Lots during the resolution of any dispute. Where such facilities/service are provided, we are entitled to charge for them in accordance with Clause 32. The charges will be borne by whichever party is responsible for payment of the arbiter’s fee.
33.5 Where there is any dispute as to the outcome of any arbitration or as to the successful party overall, we may in our absolute discretion determine the winner and the loser, and accordingly which party is responsible for the arbiter’s fees and any removal, storage and/or insurance charges.
Set Off and Lien
34.1 We shall be at liberty to set off any sums which we may owe to a Buyer or a Seller against sums payable to us under these terms and conditions.
34.2 Buyers and Sellers are not permitted to set off any sum they owe us under these terms and conditions against any money we may owe them, or any claim they may have against us, unless expressly agreed in writing.
34.3 We are entitled to exercise a general lien over any Lots in our possession to secure payment any debts, expenses, costs or charges due to us from the owner of such Lot.
Limitation of Liability
35.1 We shall not be liable for death or personal injury to any person, or for any losses or damage stemming from death or personal injury, save in so far as the same are caused by our negligence or by that of our employees or agents whilst acting in the course of their duties.
35.2 All persons entering any auction site do so at their own risk, and must take notice of all specific health and safety notices on display at individual auction sites.
35.3 Vehicles parked at any auction site are parked at the owner’s risk.
35.4 All objects and possessions are brought onto any auction site entirely at the owner’s risk and we reserve the right to remove or destroy any unattended baggage and objects as we may in our absolute discretion think fit.
35.5 In the case of any claim brought in relation to a Lot (including, but not limited to the advertisement, valuation, sale, removal, storage, insurance or retention of the Lot, any action taken following failure by the Buyer to pay the Purchase Price, or in relation to our or our employees or agents’ conduct of any auction) our maximum liability in relation to any claim or claims (whether in breach of contract, tort or otherwise) shall be limited to:
35.5.1 In the case of claims bought by a Buyer or prospective Buyer, the Hammer Price of the relevant Lot and the Buyer's Indemnity Fee (if paid by the Buyer); and
35.5.2 In the case of claims brought by the Seller, the Sale Proceeds of the Lot.
35.6 In all other cases our maximum liability shall be limited to £5,000.
36.1 Any notice by us to a Seller, Buyer or any other person or by the Seller, Buyer or any other person to us may be delivered by hand or sent by first class post, airmail or email and shall be deemed to have been duly received:
36.1.1 If hand-delivered, at the time of delivery;
36.1.2 If sent by mail, two days after the date of posting if posted to an address within the country of posting and seven days after the date of posting if posted to an address within a country outside the country of posting; or
36.1.3 If sent by email, the working day after it is sent.
36.2 In proving service by delivery:-
36.2.1 In relation to service by hand, it shall be necessary only to produce a receipt for the notice signed by or on behalf of the addressee;
36.2.2 In relation to service by post, it shall be necessary only to prove that the notice was contained in a pre-paid envelope which was duly addressed and posted first class;
36.2.3 In relation to service by email, it shall be necessary only to prove that the email was sent.
36.3 We do not accept service of any notice by facsimile or email.
37.1 We may amend or vary these terms and conditions at any time and in any way that we see fit.
37.2 The amendment or variation of these terms and conditions may be affected in any or all of the following ways:
37.2.1 By the posting of new or updated terms and conditions on Our Site;
37.2.2 By the giving of notice in writing in accordance with Clause 36;
37.2.3 By brining the existence of any new or updated terms and conditions to your attention by means of a bidder’s registration form;
37.2.4 By the posting of new or updated terms and conditions on any notice board within one of our premises;
37.5. By notification by the Auctioneer at the beginning of any Auction; or
37.2.6 By express agreement.
37.3 Please take a note of the date at the bottom of this document as you will be bound by the version that is the most recent in time.
38.1 By Using Our Site and/or otherwise agreeing to our terms and conditions (whether as contained within this document, a document to which it refers or otherwise) you explicitly consent to the processing of any personal or sensitive personal data that you have provided to us for the purposes of:
38.1.1 Conducting auctions, including communicating during and the outcome of any auction;
38.1.2 Communicating, effecting and enforcing any contract for sale, including arranging for the collection, delivery and/or payment of items; and
38.1.3 Carrying out or enforcing our terms and conditions and any legitimate process in connection therewith.
38.2 You further consent that we may provide your name and contract details (including postal address, telephone number(s) and email address) to any party with whom you have entered a contract.
39.1 The provisions of this document and all transactions or potential transactions to which it applies shall be governed by the law of England and we, the Seller and the Buyer hereby submit to the exclusive jurisdiction of the English Courts.
Waiver of Claims
40.1 Any concession or latitude allowed by us shall not affect the rights of any party (either us, the Seller or the Buyer) under these terms and conditions or give rise to a defence of either wavier or estoppel.
40.2 We shall not be deemed to have waived our rights against any Seller or Buyer unless expressly agreed in writing by one of our directors.
41.1 The benefit and burden of these Clauses and Conditions may not be assigned by the Seller or the Buyer without our prior agreement in writing.
42.1 If any Clause or any part of any Clause shall be held to be unenforceable, void or invalid such unenforceability or invalidity shall not affect the enforceability and validity of the remaining Clauses or the remainder of the relevant Clause.
43.1 The headings and numbering used in the Clauses are for convenience only and shall not affect their interpretation. The clauses contained within the section headed Buyers’ Obligations shall apply likewise to Sellers and via versa.
43.2 Reference to the male gender shall be deemed to be a reference to male or female as appropriate.
Version: October 2015
General Conditions of Sale
1. Definition of Auctioneer and Agent’s Status
1.1 Brightwells Ltd. (hereinafter called “the Auctioneers”) sell as agents for the Seller (except where they are stated wholly or partly to own any Lot as principal) and
1.1.2 the parties to the contract of sale are the Seller and the Buyer and the Auctioneers as such are not responsible for any default by Seller or Buyer.
1.2 The Auctioneers means any employee or agent of Brightwells Ltd. who at the relevant time has the authority to conduct an auction or sale.
2. Confirmation of Ownership
2.1 The Seller warrants to the Auctioneers and to the Buyer:
2.1.1 that he is the true owner of the Lot or is properly authorised to sell the Lot by the true owner.
2.1.2 and is able to transfer a good and marketable title to the Lot free from any third party claims liens and encumbrances and that all entries on the entry form are correct.
2.2 The Seller will indemnify the Auctioneers, their servants and agents and the Buyer against any loss or damage suffered by them in consequence of any breach of the above warranty on the part of the seller.
2.3 The Auctioneers may make such announcements or publish such information supplied by a Seller about any Lot as they in their discretion think fit.
2.3.1 and the Seller will indemnify the Auctioneers if any warranty is found to have been made by the Auctioneers as a result of such announcements or publications.
3. Auctioneers Right to Split or Amalgamate Lots, to Refuse Admission & Bids
The Auctioneers shall have the right at their discretion to:
3.1 refuse admission to their premises or attendance at their auctions by any person
3.1.1 require any Seller to remove a Lot from the auction premises or to remove the Lot themselves (if the Seller refuses so to do) and recover the costs from the Seller.
3.2 The Auctioneers have absolute discretion without giving any reason to refuse any bid, to divide any Lot, to combine any two or more Lots, to withdraw any Lot from the auction and in case of dispute put up any Lot for auction again.
3.3 The Auctioneers may accept written instructions to bid on behalf of prospective Buyers but any instructions accepted shall be at the risk of the prospective Buyers, who will be deemed to have viewed the Lot(s).
4. Faults & Descriptions, Responsibility of Lots
4.1 Every Lot must be taken to with all faults and imperfections and errors of description (if any).
4.2 Until sold, each Lot shall be at the Seller’s risk and it shall be his duty to preserve the same.
4.3 After the fall of the hammer such risk and duty shall devolve upon the Buyer.
4.4 Title in all Lots remains vested in the Seller or Brightwells Ltd. (as the Seller’s Agent) until payment in full has been made. In the event of the Lots being re-sold before payment being made in full the purchaser shall hold the proceeds of such sale on trust for the Seller (or Brightwells Ltd. as Seller’s Agent).
4.5 No Lot shall be removed from the place of sale until the sale has been concluded, full payment made and pass obtained from the Auctioneers or their Clerk.
4.6 Notwithstanding such a lien and the right of possession aforesaid, the Auctioneers do not accept any risk as regards any Lot, nor any liability whatever, as to preservation or delivery thereof.
5. Resale due to Faults or Compliance
5.1 On failure of compliance with the Conditions, the Auctioneers may re-sell the Lot or Lots, either by public auction or private contract and the deficiency (if any) with all expenses, shall be made good by the defaulter at this sale, but such defaulter shall not be entitled to any surplus which may arise by such re-sale, which shall remain the property of the Auctioneers.
5.1.1 Such expenses shall be deemed to include the usual Auctioneers commission on the re-sale and all expenses for porters, advertising, market tolls, carriage, care, storage, keep and otherwise.
6. V.A.T. (Subject to current legislation)
6.1 Value Added Tax at the Rate prevailing on the day of the sale will be added to the purchase price of all items bought at any sale in the United Kingdom, the amount will clearly be shown on the Buyer’s invoice.
6.2 The only exceptions to the provisions of Clause 6.1 will be:
6.2.1 ‘Zero’ rated or ‘Exempt’ articles,
6.2.2 or if prior to sale the Auctioneers hold a signed Seller’s declaration stating that he is either not registered for V.A.T. (unless the sale is wholly non-margin scheme).
6.2.3 or that items entered by him are eligible for sale under ‘second-hand margin scheme for V.A.T. rules.
6.3 Overseas Buyers must pay all V.A.T. chargeable on an invoice under United Kingdom legislation. V.A.T. may be refunded if appropriate upon production of acceptable proof of:
(a) export of the items and
(b)registration for V.A.T. of the Buyer within another E.U. State, where items have been dispatched to that E.U. State.
7.1 Would all Sellers please note that we (Brightwells Ltd.) will raise a self billing tax invoice for the proceeds of any goods in this or any other sale held by us. It is a Customs & Excise requirement that this is the only tax invoice raised for those items.
7.2 We must have your V.A.T. registration number (where appropriate) together with your name and address for inclusion on any self billing tax invoice raised by ourselves.
7.3 You must notify us immediately if your V.A.T. registration number is cancelled, or if you are issued with a new V.A.T. registration number.
7.4 Any Seller not agreeing to this system of self billing tax invoices being raised by us must notify us prior to the commencement of the sale. Regrettably, we can only operate with a self billing system in place, and therefore will not sell the goods of any Seller who is unable to accept this system.
8. No Biddings Retracted
8.1 No bidding shall be retracted. The bidding increments will be regulated by the Auctioneers
9.1 All Buyers must declare their names and addresses, (and produce proof of identity) and to pay
to the Auctioneers the amount of the purchase money in cash, immediately on the fall of the hammer, and in default of which the Lot or Lots shall be offered again and re-sold, at the Auctioneers’ discretion.
9.2 Under no circumstances may any Lot be removed without first obtaining a pass from the Auctioneers.
9.3 The Auctioneers may at their absolute discretion, agree to accept payment by such other means or such other manner than is provided for in 9.1 as they see fit.
10. Owners Risk
10.1 Neither the Sellers nor the Auctioneers will be responsible for any accident, or damage to life or limb prior to or during the progress of the Sale, or at any time during the removal of Lots.
10.2 Vehicles parked at the Sale are at the owner’s risk.
10.3 All objects and possessions are brought onto the Sale Site entirely at the owner’s risk and unattended baggage and objects will be removed or destroyed as the Auctioneers think fit.
11. Highest Bidder
11.1 The Buyer shall be the highest bidder.
11.2 In the event of a dispute between two or more bidders as to which is the Buyer, the dispute shall be settled at the absolute discretion of the Auctioneers.
12. Sellers Right to Bid
12.1 The Seller reserves the right to bid, however, no Seller may bid for any of his/her own Lots, except through the Auctioneers.
12.2 The Auctioneers reserve the right to charge full commission on the reserve price of any Lot so bought in.
13.1 The Seller shall be entitled prior to the auction to place a reserve price on any Lot, being the minimum amount for which the Lot shall be sold.
13.2 Such reserve shall be in writing and the document containing the reserve will be handed to the Auctioneers not later than one hour prior (or as advised in special conditions) to the commencement of the auction and in the event of the Seller failing so to do the Lot will be sold without reserve.
13.3 The Auctioneers reserve the right to sell any lot at 10% less than the reserve price.
13.4 Where a reserve price has been placed only the Auctioneers may bid on behalf of the Seller, whilst any third party may not bid on the Seller’s behalf.
13.5 Any Lot bought in by the Seller in excess of the reserve price will be subject to full commission charges.
14. Reservation of Title
14.1 If the Auctioneers do not demand payment from the Buyer but allow him to remove the Lot from the sale then the Buyer shall ensure that the title in the Lot remains vested in the Seller (or Brightwells Ltd. as Agents of the Seller) until payment in full has been made. If the Seller has been paid, but the goods not paid for the title remains with Brightwells Ltd. until full payment has been made.
14.2 Until payment in full has been made the Buyer shall undertake to keep the Lot in a good and marketable and readily identifiable condition and not to sell the Lot which remains the property of the Seller. In addition, if not paid for on demand, the Lot shall be returned to the Auction site for resale and shall be dealt with as in 5.1.
14.3 In the event of sale by a Buyer before payment has been made in full the Buyer shall hold the proceeds of such sale on trust for Brightwells Ltd. (as Agent of the Seller).
14.4 In the event of breach of conditions, the Auctioneers reserve the right to enter on to property of the Buyer, or others to reclaim possession of any Lot.
15. Private Sales
15.1 All private sales made on the day of the sale must be booked through the Auctioneers.
15.2 The Auctioneers reserve rights at their option to:
15.2.1 treat as void any private sale made by a Seller of any Lot which he shall have entered for sale by the Auctioneers and which has been received at the sale by them or on their behalf or
15.2.2 to charge and reserve from such Seller their appropriate commission upon any such sale.
In case of dispute as to the meaning of any description or warranty the decision of the Auctioneers shall be final and binding on all parties.
17.1 In these conditions of sale, unless the contrary intention appears, words importing the masculine gender shall indicate female and words in the singular shall include the plural and words in the plural include the singular.
18. All Buyers are deemed to bid on the understanding that they have read and understood these Conditions of Sale.
19. Royal Institution of Chartered Surveyors Rules of Conduct 2007
19.1 This market is not required to comply with Rule 8 of the RICS Rules of Conduct (Clients’ Money).
NO monies paid to this market are covered by any scheme for the protection of clients’ money operated by the Royal Institution of Chartered Surveyors.
A more detailed explanation can be obtained in writing from: The RICS Regulation Department, Surveyor Court, Westwood Way, Coventry CV4 9JE.
20. Health & Safety & Risk
20.1 All persons entering the Sale Site do so at their own risk.
20.2 All persons entering the Sale Site must take notice of all specific health and safety notices on display at individual sites. If in doubt please consult the Safety Officer/Auctioneer in charge.
21. Commission Bid
21.1 Commission bids will be faithfully executed when received in writing at least one hour prior to sale, on condition that the Lots have been viewed by the intending Buyer or his Authorised Agent and the Buyer agrees to take with all faults and mis-descriptions. Whilst any Lot will be purchased as other bids and reserves allow, the Auctioneers will accept no responsibility if a commission bid is not executed.
21.2 All Lots bought on commission must be paid for immediately, regardless of whether or not they have been collected.
21.3 A deposit may be requested at the time of placing a commission bid.
22. Additional Charges
22.1 The Auctioneers reserve the right to levy additional charges where appropriate. These may include: Commission, Levies, Tolls, Offering Fees, Transfer Fees, Haulage, Contra Accounts, Advertising, Sundries, Buyers Premium, Indemnity and other charges appropriate to individual sales. Please ask for a confirmation of rates PRIOR TO SALE if you require clarification.
Save as provided in 23.1.2 below, in all cases where a person whose bid is accepted is in fact acting
as an agent, whether or not he has disclosed this fact, he and his principal shall be deemed to be and remain jointly and severally liable on the contract, and no steps taken or proceedings commenced against the principal or the agent shall be deemed to operate as an election discharging the other from liability unless such steps or proceedings result in a final satisfied judgment.
23.1.1 Save as aforesaid, the agent and his principal shall be deemed to be jointly and severally liable on the contract and any steps authorised by these Conditions or the general law may be taken against either or both of them, whether the existence or identity of the principal was disclosed or not.
23.1.2 Conditions 23.1 and 23.1.1 above shall not apply if before the commencement of the sale the agent informs the auctioneers that he intends to contract as a principal, in which case the agent will be deemed to be personally and solely liable on the contract.
Buyers making a purchase for export must comply with all regulations and export requirements and indemnify the Auctioneers against any liability.
23.3 Catalogues and Advertisements
The Auctioneers cannot guarantee that any Lot described in any Catalogue or Advertisement will arrive for Sale, nor that any description therein contained can be relied upon as accurate. All Lots should be inspected by the Buyer who bids on the understanding that he has inspected (or is deemed to have inspected) the Lot and agrees to take with all faults and imperfections.
23.4 Disposal of Not Sold Lots
Any Lot that fails to attract a minimum bid (as applicable) will be disposed of by the Auctioneers and any costs will be payable by the Seller. If the Seller wishes to retain and remove the Lot, this must be done by the end of the sale day and on condition that all relevant charges and fees have been paid to the Auctioneers.
24. Please Note
24.1 These are only the General Conditions of Sale and the Special Conditions appropriate should also be referred to by all Sellers and Buyers.
24.2 In certain circumstances, Special Conditions may detail additional, more specific requirements than the General Conditions. In these cases the Special Conditions take precedence over the General Conditions.
24.3 Livestock Sales will use the General Conditions of Sale for Cattle, Calves, Sheep and Pigs (2009) as recommended by the L.A.A., (subject to update) together with additional Special Conditions.
24.4 Special regulations may be in place to complement General and Special Conditions such as MOD and Breed Society regulations.
24.5 No refunds will be given for catalogue orders/subscriptions.
Version: August 2016
ONLINE AUCTION USER TERMS AND CONDITIONS
This page (together with the documents referred to on it) tells the buyer (you) the terms and conditions on which Brightwells Limited provides facilities for you to place online bids (Bids) for a vehicle (Vehicle) which is listed on our website www.brightwells.com (our site) and which is being auctioned at one of the auction centres. As such, we operate our site as agent of those subsidiaries. Please read these terms and conditions carefully before placing any Bids through our site.
You should understand that by logging in to use our site, you agree to be bound by these terms and conditions and you acknowledge that they override any terms and conditions which you purport to impose. Any Bids placed by you, and any contract for the purchase of a Vehicle, is made in accordance with and subject to these terms and conditions and the relevant Brightwells’ Terms & Conditions of Sale.
These terms and conditions should be read in conjunction with the Brightwells’ Terms & Conditions of Sale in use. In the case of inconsistencies between these terms and conditions and the Brightwells’ Terms & Conditions of Sale, these terms and conditions shall prevail.
You should print a copy of these terms and conditions for future reference.
Information About Us
1.1 www.brightwells.com is a site operated by Brightwells Limited (we/us). We are registered in England and Wales under company number 2052714 and our registered office address is Easters Court, Leominster, Herefordshire, HR6 0DE. This is also our main trading address. Our VAT number is GB133 4722 89.
1.3 We do not guarantee that your access to our site or that your placing of Bids will be uninterrupted, without delay, secure or error free. Our site is provided on an "as is" basis and we exclude all liability whatsoever arising out of or in connection with your inability to access our site, place Bids or win any auctions.
1.4 By logging into our site and placing a Bid, you warrant that:
1.4.1 You are the registered user of the username and password which was allocated to you on registration to use our site;
1.4.2 You are placing a Bid on behalf of a business acting in the course of business;
1.4.3 You are authorised to place Bids on behalf of the business and to legally bind that business; and
1.4.4 You are at least 18 years old.
How the Contract Is Formed Between You and the Seller
1.5 Once you have placed a Bid, our online system will indicate whether it has been registered. Your Bid constitutes an offer to the Auctioneer (as agent of the third party seller (Seller)) to buy a Vehicle. If your offer is accepted as the highest bid by the Auctioneer on behalf of the Seller and the reserve price has been met, confirmation of such acceptance (Bid Acceptance) will be highlighted on the online screen.
1.6 Where a Reserve is agreed but not attained the Auctioneer may allocate the Lot as being
Provisionally Sold and clause 1.7 shall operate
1.7 Where the Lot has not reached its Reserve and the Auctioneer in his absolute discretion has allocated a Lot as Provisionally Sold to the highest bidder, Brightwells shall take steps to contact the Seller on the day of the Auction and agree with the highest bidder a price for the Lot and conclude a sale between the Seller and the highest bidder as agent for the Seller.
1.8 Any sale by private treaty shall be subject to the Conditions or to commission and expenses as if it had been sold by Auction.
1.9 You may not withdraw any Bids without the Auctioneer's consent.
1.10 If our system confirms your Bid has been accepted in accordance with condition 1.5 above, you will become the “Buyer” as defined in the Brightwells’ Terms & General Conditions of Sale and accordingly those parts describing the conditions of the contract of sale between the Seller and the Buyer and the terms as between the Auctioneer and the Buyer of the Brightwells’ Terms & General Conditions of Sale shall apply.
You should note that it is your responsibility to arrange collection of the Vehicles you have bought. The Auctioneer may at its discretion offer delivery services in respect of the Vehicle, but this will be subject to transporter and driver availability and our terms, which are available upon request from the Auctioneer.
Payment of Online Auction Fee
1.11 In addition to any charges fees or purchase monies payable under the Brightwells’ Terms & General Conditions of Sale, you will be liable to pay a fee, being:
a. £25 plus VAT for sales of 4x4s, Cars, Vans & Leisure Vehicles or
b. 1% of the hammer price plus VAT for sales of Classic Vehicles
c. 2% of hammer price plus VAT for sales of Paintings
charged by us for participating in and (if applicable) winning the relevant auction through using our site. Details of our current fees, and those of the Auctioneer, can be obtained from the Auctioneer prior to the auction. The fee for participating in the auction and (if applicable) for winning the auction through using our site will become due for payment upon generation of the Bid Acceptance (see condition 1.5), and must be paid to the Auctioneer at the same time as you pay for the Vehicle as provided for by the Brightwells’ Terms & General Conditions of Sale.
Our Liability and the Auctioneer's Liability
1.12 The Auctioneer's liability to you is as set out in the Brightwells’ Terms & General Conditions of Sale, as is the Seller's liability.
1.13 You accept that your purchase of the Vehicle is being made in accordance with the Brightwells’ Terms & General Conditions of Sale. You acknowledge and confirm we have no liability or obligation whatsoever to you in respect of any representation or statement made by us on our site about the specification, colour or condition (together “details”) of the Vehicles listed there. All such details are provided for information purposes only. All Vehicles are available for inspection prior to the commencement of the auction and you should satisfy yourself as to the details of the relevant Vehicle prior to placing any Bids.
1.14 By placing Bids, you acknowledge and confirm you accept that the auction is being operated by the Auctioneer and that we accept no liability whatsoever for the actions or omissions of that Auctioneer.
1.15 Nothing in these terms and conditions limits in any way our liability for death or personal injury caused by our negligence or for fraud or fraudulent misrepresentation.
Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us (and the Auctioneer) will be mainly electronic. We (and/or the Auctioneer) will contact you by email or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
All e-mail notices given by us (and the Auctioneer) to you will be sent to you at the e-mail address you provided to us when registering to use our site. Notice will be deemed received and properly served immediately when posted on our website or 24 hours after an e-mail is sent. In proving the service of any notice, it will be sufficient to prove, in the case of an email, that such e-mail was sent to the e-mail address specified by you when you registered to use our site, or in the case of notices posted on our site, by the production of a copy of the cached page showing the notice.
1.16 If we fail, at any time, to insist upon strict performance of any of your obligations under any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under these terms and conditions, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
1.17 A waiver by us of any default shall not constitute a waiver of any subsequent default.
1.18 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with the clause “Written Communications” above.
If any of these terms and conditions is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
1.19 These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter contemplated by these terms and conditions and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
1.20 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in these terms and conditions.
Our Right to Vary These Terms and Conditions
1.21 We have the right to revise and amend these terms and conditions from time to time.
1.22 You will be subject to the policies and terms and conditions in force at the time that you log in to use our site.
Law and Jurisdiction
Your use of our site and contracts for the purchase of Vehicles entered into through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such contracts or their formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales.