HILCO INDUSTRIAL LIMITED AND HILCO APPRAISAL LIMITED TERMS AND CONDITIONS
The following terms and conditions ("Terms") are the terms on which Hilco Industrial Limited (a limited liability company incorporated under the laws of England and Wales with company number: 06088178 and whose registered office is at 3 St. Helen’s Place, Bishopsgate, London EC3A 6AB and/or Hilco Appraisal Limited (a limited liability company incorporated under the laws of England and Wales with company number: 04703331 and whose registered office is at
3 St. Helen’s Place, Bishopsgate, London EC3A 6AB (“Hilco”), as the case may be, the relevant party to be identified on the relevant invoice sells Equipment (defined below) at Auctions (defined below) or by means of Private Treaty Sales (defined below) and supersedes all other terms and conditions relating to the subject matter of these Terms.
THE BUYER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSE 8 AND THE BUYER SHOULD NOTE THAT:
• ALL EQUIPMENT IS SOLD ‘AS IS’ (WITH ALL FAULTS, IMPERFECTIONS AND DEFECTS)
• NO GUARANTEES AND/OR WARRANTIES ARE PROVIDED BY HILCO IN RESPECT OF
• IT IS THE BUYER’S RESPONSIBILITY TO INSPECT EQUIPMENT PRIOR TO BIDDING ON
SUCH EQUIPMENT OR ACCEPTING OFFERS IN RESPECT OF SUCH EQUIPMENT
• ALL SALES ARE FINAL – NO EXCEPTIONS
• SALES MAY BE SUBJECT TO A BUYER’S PREMIUM (DEFINED BELOW), THE RATE OF
WHICH WILL VARY FROM SALE TO SALE
• ALL AUCTIONS (DEFINED BELOW) ARE SUBJECT TO THE AUCTIONS (BIDDING
AGREEMENTS) ACT 1927 AND AUCTIONS (BIDDING AGREEMENTS) ACT 1969
"Buyer" means any person, firm or Auctioneer who participates in an Auction by placing one or more bids;
"Catalogue" means an online or printed document containing a description of the Equipment to be sold at an Auction;
"Data Protection Act" means the Data Protection Act 1998 (as amended from time to time) or such other legislation which enacts or consolidates it (with or without modification);
"Buyer’s Premium" means a percentage of the Hammer Price (specified in the Conditions of Sale) which is added to the Hammer Price to make up the Purchase Price;
"Auction" means a public sale or online sale at which items of Equipment are being
sold by Hilco, each such item of Equipment going to one of the competing bidders;
“Advertising Material” means brochures, pamphlets, advertisements and any other marketing material (in both electronic and printed format) used by Hilco to market and promote the Auctions;
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and phrases used in these Terms shall have the following meanings, except where the context clearly requires otherwise:
"Equipment" means the assets in respect of which potential buyers are invited to submit offers by means of placing bids at an Auction;
"EU" means the European Union;
"Force Majeure Event" means any event beyond the reasonable control of a Party and which affects the performance by a Party of its obligations under these Terms and arises directly from an act of God, local government or government, war, fire, flood, earthquake or storm, acts of terrorism, explosion, civil commotion or industrial dispute;
"Hammer Price" means the amount offered by the Buyer and accepted by Hilco in respect of the relevant Equipment;
"Parties" means Hilco and the Buyer collectively and "Party" shall mean any one of them as determined by the context;
"Personal Data" means any personal information (such as name, address, telephone number, credit card details and copies of documents such as a driving licence used for identification purposes) which the Buyer provides to Hilco when submitting a Registration Form to Hilco;
"Private Treaty Sale" means a sale (not by way of an Auction) of Equipment by Hilco where Hilco prepares descriptive details of the Equipment for sale and quotes a definitive asking price which is then accepted by a Buyer;
"Proxy Bid" means a bid submitted by an employee of Hilco on a Buyer’s behalf and with the Buyer’s authority in circumstances where a Buyer is unable to participate in an Auction;
"Purchase Price" means the Hammer Price plus the Buyer’s Premium;
"Registration Form" means the printed or online form the Buyer completes when registering for an Auction;
"Sale Specific Terms" means any terms published by Hilco on any of the Websites or made available at any Auction and which relates to the specific Auction mentioned in such terms;
"Third Party" means any person or entity other than the Parties;
"VAT" means value added tax charged under or pursuant to the Value Added Tax Act 1994; and
"Websites" means Hilco’s websites located at www.hilcoind.com and any other websites used by Hilco for purposes of Auctions.
1.2 The headings used in these Terms have been inserted for convenience only and shall not
affect its construction or interpretation.
1.3 Words importing the singular include the plural and vice versa.
1.4 Words importing a gender shall include all genders.
1.5 Reference to any statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under them as from time to time amended, consolidated or re-enacted.
1.6 In the event of a conflict between the provisions of these Terms and the Sale Specific
Terms, the Sale Specific Terms shall take precedence.
2. APPLICABILITY OF THESE TERMS
These Terms apply to all Auctions and Private Treaty Sales facilitated and/or conducted
3. STATEMENTS RELATING TO THE EQUIPMENT
All statements relating to the Equipment put up for auction at an Auction or offered for sale by means of a Private Treaty Sale contained on the Websites, in any Catalogue or in any Advertising Material (such as statements relating to description, quality and condition) are qualified statements of opinions and should not be relied upon or construed as being representations or warranties. It is the Buyer’s responsibility to inspect Equipment prior to bidding on such Equipment at an Auction or accepting an offer in respect of a Private Treaty Sale.
4. REMOVAL OF EQUIPMENT
4.1 It is the Buyer’s responsibility to collect or to arrange for the collection of Equipment bought (at the Buyer’s cost).
4.2 The Buyer should contact the individual whose name and contact details are provided in the Sale Specific Terms to arrange for the collection of Equipment.
4.3 Hilco shall only release Equipment for collection by a Buyer or its duly authorised representative once such Equipment has been paid for in full and Hilco has received such payment in cleared funds.
4.4 The Buyer must make payment of the Purchase Price on receipt of Hilco’s invoice. Invoices relating to purchases made via the Websites will be emailed to the Buyer within 48 hours of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale.
4.5 Unless stated otherwise in the Sale Specific Terms, the Buyer shall collect or arrange for the collection of the Equipment purchased within 10 days of the closing of the relevant Auction or conclusion of the relevant Private Treaty Sale, after which Hilco shall be entitled to charge to the Buyer the cost of storing such Equipment. The Buyer agrees to advise Hilco of the intended date for collection and method of collection and transport prior to collecting the Equipment.
4.6 The dismantling and removal of Equipment by the Buyer shall comply with the Health and Safety at Work Act 1974 as amended from time to time and with the Construction (Design & Management) Regulations 2007 (or the equivalent local legislation of the country in which the relevant Equipment is located), if applicable, together with Hilco’s site safety policies and procedures. After the dismantling and removal the Buyer shall ensure that the site where the Equipment is located is left clean and in the state it was in prior to the dismantling and removal of the Equipment by the Buyer.
4.7 Certain types of Equipment may contain hazardous materials (such as chemicals) and the Buyer must ensure that the removal of such hazardous materials is carried out in accordance with the Health and Safety at Work Act 1974 and the Control of Substances Hazardous to Health Regulations 1988 and any other relevant legislation and/or regulations dealing with the removal and handling of such hazardous materials. If Equipment is located outside of the United Kingdom, the Buyer must ensure that the removal of such hazardous materials is carried out in compliance with the applicable local law.
4.8 The Buyer shall indemnify and shall keep Hilco indemnified against all liabilities, damages,
costs, expenses, death and personal injury arising from or in the course of the removal of
5 RISK AND TITLE
5.1 The risk in and to Equipment bought by the Buyer at an Auction shall pass to the Buyer on the ‘fall of the hammer’, but the legal and beneficial title in and to such Equipment shall remain with Hilco until the Buyer’s payment of the Purchase Price (together with any VAT) in accordance with clause 7 and has been received by Hilco in cleared funds.
5.2 The risk in and to Equipment bought by the Buyer by means of a Private Treaty Sale shall pass to the Buyer on the date on which the Private Treaty Sale is agreed between Hilco and the Buyer, but the legal and beneficial title in and to such Equipment shall remain with Hilco until the Buyer’s payment of the Purchase Price (together with any VAT) in accordance with clause 7 and has been received by Hilco in cleared funds.
6 PROXY BIDS
HILCO may place Proxy Bids on behalf of Buyers at any Auction.
7. PURCHASE PRICE AND PAYMENT TERMS
7.1 The Purchase Price shall consist of the Hammer Price plus the Buyer’s Premium (if applicable), or, in the event of Private Treaty Sales, the Purchase Price shall be the price agreed between Hilco and the relevant Buyer in respect of such Private Treaty Sale.
7.2 Hilco may levy a Buyer’s Premium on all sales at Auctions and the rate of such Buyer’s Premium will vary from sale to sale.
7.3 The Purchase Price does not include VAT and any VAT relating to a sale shall be payable by the Buyer at the then current rate. In respect of VAT the following shall apply:
7.3.1 For Buyers located in the United Kingdom will be charged VAT on the Purchase Price, and for sales at Auctions, VAT will be levied separately on the Hammer Price and the Buyer’s Premium;
7.3.2 For Buyers located outside of the United Kingdom, but within the EU must complete an intra EU form and return such form to Hilco and Buyers returning intra EU forms will not be charged VAT on the Hammer Price, but VAT will be levied on the Buyer’s Premium; and
7.3.3 For Buyers located outside of the EU will be charged VAT on the Purchase Price and a refund of the VAT paid on the Hammer Price can be processed by sending the full shipping documents to Hilco.
7.4 The intra EU forms and the full shipping documents required under clauses 7.3.1 and
7.3.2 should be sent to Martin Taylor: firstname.lastname@example.org or by fax +44 (0) 8453 130 150).
7.4.1 Buyers wishing to claim an exemption from VAT should provide satisfactory proof to Hilco
of the Buyer’s entitlement to claim such exemption.
7.5 The Purchase Price should be paid by means of electronic funds transfer (EFT). The bank details and the currency in which payment should be made shall be specified in the Sale Specific Terms.
7.6 Time for payment shall be of the essence and any items of Equipment in respect of which full payment (in cleared funds) has not been received by Hilco within 10 days of the closing of the relevant Auction or Private Treaty Sale shall be forfeited and the Buyer shall be liable for the administrative costs of Hilco for arranging for the resale and/or scrapping of such Equipment and any resulting loss of fees or commission incurred by Hilco.
7.7 No payment shall be deemed to have been received until Hilco has received the relevant payment in cleared funds.
7.8 The Buyer shall make all payments due under these Terms in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
7.9 If the Buyer fails to pay Hilco any sum due pursuant to the Buyer purchasing any Equipment at an Auction, the Buyer shall be liable to pay interest to Hilco on such sum from the due date for payment at the maximum allowable annual rate according to the Late Payment of Commercial Debts (Interest) Act 1988, accruing on a daily basis until payment is made, whether before or after any judgment.
8 WARRANTIES AND LIMITATION OF LIABILITY
8.2 THE PROVISIONS OF THE SALE OF GOODS ACT 1979 (AS AMENDED) ARE
HEREBY EXPRESSLY EXCLUDED INSOFAR AS IS PERMITTED BY LAW.
8.3 WHERE THE FURNITURE & FURNISHINGS (FIRE & SAFETY) REGULATIONS 1988 APPLIES TO ANY EQUIPMENT, SUCH EQUIPMENT IS SOLD ON THE UNDERSTANDING THAT HILCO DOES NOT WARRANT OR REPRESENT THAT SUCH EQUIPMENT IS IN A CONDITION THAT MAKES IT SUITABLE FOR DOMESTIC USE. IN THE EVENT OF THE BUYER INTENDING TO USE SUCH EQUIPMENT IN A DOMESTIC ENVIRONMENT, THE BUYER SHOULD ENSURE THAT SUCH EQUIPMENT COMPLIES WITH THE REQUIREMENTS OF THE FURNITURE & FURNISHINGS (FIRE & SAFETY) REGULATIONS 1988, AS AMENDED FROM TIME TO TIME.
8.1 ALL EQUIPMENT IS SOLD “AS IS“. HILCO DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS OR CONDITION OF THE EQUIPMENT OR AS TO THE CORRECTNESS OF DESCRIPTION OF SUCH EQUIPMENT. THE BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL HILCO BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY COMPENSATORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE BUYER AS A RESULT OF PARTICIPATING IN AN AUCTION AND/OR PURCHASING ANY EQUIPMENT AT AN AUCTION OR BY MEANS OF A PRIVATE TREATY SALE.
8.4 IT IS THE BUYER’S RESPONSIBILITY TO ENSURE THAT ANY EQUIPMENT CLASSIFIED AS A ‘MOTOR VEHICLE’ IN TERMS OF SECTION 185 OF THE ROAD TRAFFIC ACT 1988 COMPLIES WITH THE PROVISIONS OF SUCH ACT, OR, IF SUCH MOTOR VEHICLE IS LOCATED OUTSIDE OF THE UNITED KINGDOM, TO THE APPLICABLE LOCAL LEGISLATION.
9. INTELLECTUAL PROPERTY
The copyright in the text appearing on the Websites, in any of our Catalogues, Advertising Material and the photographs, digital images and illustrations of Equipment on the Websites, in any of our Catalogues and in any Advertising Material vest in and shall remain vested in Hilco or its licensors. The Buyer will not reproduce or permit anyone else to reproduce such text, photographs, digital images or illustrations without Hilco’s prior written consent.
10. DATA PROTECTION
10.1 Hilco collects Personal Data from the Buyer when the Buyer submits a Registration Form to Hilco, or, if a Buyer generally provides Personal Data to Hilco in the course of doing business with Hilco.
11. REGISTRATION AND ACCESS TO THE WEBSITES
11.1 While Hilco endeavours to ensure that the Websites are normally available 24 hours a day, Hilco shall not be liable if for any reason the Websites are unavailable at any time or for any period. Access to the Websites may be suspended temporarily and without notice in the case of system failure, maintenance or repair, or for reasons beyond Hilco's control.
11.2 Each registration by a Buyer as a registered user on the Websites is for a single user only. Hilco does not permit a Buyer to share a user name and password with any other person nor with multiple users on a network.
11.3 Responsibility for the security of any passwords issued rests with the Buyer.
11.4 In consideration of the Buyer’s use of the Websites, the Buyer agrees to maintain the security of the password and identification used to access the user area of the Websites, and the Buyer shall be fully responsible for all use of the Buyer’s account and for any actions that take place using the Buyer’s membership account.
A waiver (whether express or implied) by one of the Parties of any of the provisions of these Terms or of any breach of or default by any other Party in performing any of those provisions, will not constitute a continuing waiver and that waiver will not prevent the waiving Party from subsequently enforcing any of the provisions of these Terms not waived or from acting on any subsequent breach of or default by any other Party under any of the provisions of these Terms.
The provisions contained in each clause and sub-clause of these Terms is enforceable independently of each of the others and its validity will not be affected if any of the others is invalid. If any of those provisions is void but would be valid if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it valid.
14. THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No Third Party may enforce any of the terms contained in these Terms under the Contracts (Rights of Third Parties) Act 1999.
15. WHOLE AGREEMENT
These Terms contain the whole agreement between the Parties relating to the subject matter contemplated by these Terms.
16.1 Any disputes relating to bidding at an Auction shall be settled by Hilco (acting in its sole discretion).
16.2 Hilco may, at its discretion, put any Equipment which is the subject of a dispute up for sale again.
16.3 A Buyer may not withdraw a bid.
17. GOVERNING LAW AND JURISDICTION
These Terms are governed by and will be construed in accordance with English law. Each Party irrevocably submits to the exclusive jurisdiction of the English Courts for all purposes relating to these Terms.