Article 1 Purpose
1.1 These terms and conditions of auction (these "Auction
Terms") and the Important Notices (the "Important Notices")
contained in the relevant Auction Catalogue (defined below) contain all the
terms and conditions on which:
1.1.1 K Auction Inc. ("K Auction") shall conduct an Auction
(defined below);
1.1.2 prospective Bidders shall register and/or apply to place, and
Bidders shall place, bids in such Auction;
and
1.1.3 K Auction and the Seller (including the Consignor) shall contract
with the Buyer in connection with the sale of any Lot in such Auction (“Consignment
Agreement”). K Auction and the Consignor shall have a separate Consignment
Agreement containing additional terms between both parties.
Article 2 Definition
2.1 “Auction” means an online auction conducted by K Auction and its
Online Auction System (the “Online Auction System) on K Auction’s website
(www.k-auction.com) in accordance with these Auction Terms and/or the Important
Notices.
2.2 “Auction Catalogue” means, in relation to an Auction, the descriptions
and information listed on K Auction’s website and pertinent to the Lots
scheduled to be sold at such Auction. “Auction Catalogue and/or elsewhere”
means but not restricted to, every material produced by K auction (including
materials on the K Auction official website, web mail, SMS, smartphone
application, listbook, brochure, condition report, Lot recommendation, research
study, screen display at Auction, marketing and promotional printouts).
2.3 “Object” means all physical property and service vouchers deemed fit
for auction, including but not limited to artworks, musical instruments, watches,
jewels, educational experience vouchers, meal vouchers and exchange vouchers,
and “Lot” means all objects offered for sale at Auction, for sale before or
after Auction or for sale continuously and irrespective of Auction Period(s). “Artwork” means an original work created
to express the artist’s thought, emotion or artistic experience through any
media, including but not limited to painting, sculpture, print, craft,
calligraphy, photography, audiovisual media, installation or applied art.
2.4 “Auction Closing Date” means, in relation to an Auction, the date on
which the Auction Period of the Lot(s) shall end. “Auction Closing Time” means,
in relation to an Auction, the time at which the Auction Period of each Lot is
scheduled to end. “Final Auction Closing Time” means, in relation to an
Auction, the actual time at which the Auction Period of each Lot has ended.
2.5 "Auction Period" means, in relation to an Auction, the
date(s) on which such Auction is held.
2.6 "Bidder" means, in relation to an Auction, any person who
has applied to K Auction to place bids in such Auction and accepted by K
Auction or, if applicable, has received written confirmation of such
application from K Auction in accordance with these Auction Terms and/or the
Important Notices.
2.7 "Business Day" means a calendar day which is not a Saturday,
a Sunday or a public holiday in Korea.
2.8 "Buyer" means, with respect to any Lot, the Bidder who is
declared by K Auction to be the Bidder who has made the highest bid for such Lot
in accordance with these Auction Terms.
2.9 "Buyer Withdrawal Fee" means, with respect to any Lot, the charge
to be imposed upon cancellation of a winning bid, at an amount equal to 30% of
the Hammer Price of the relevant Lot and payable by the Buyer to K Auction.
2.10 "Buyer's Expenses" means, with respect to any Lot, any
taxes, costs, charges or expenses including, but not limited to, any currency
conversion costs, storage charges, packaging, delivery and transit insurance
costs, incurred by any of K Auction, its directors, officers, employees and/or
agents in connection with the sale of such Lot pursuant to these Auction Terms
and/or the Important Notices and payable by the Buyer to K Auction.
2.11 "Buyer's Premium" means, with respect to any Lot, the
premium payable by the Buyer to K Auction in accordance with these Auction
Terms in connection with the Consignment Agreement and such Lot.
2.12 "Consignor" means, with respect to any Lot, the person who
has consigned such Lot to K Auction to be sold at an Auction by entering into a
consignment agreement with K Auction prior to the start date of such Auction.
2.13 "Estimate Price" means, with respect to any Lot, the
estimated value of such Lot, determined by K Auction at its sole and absolute
discretion as is delegated, as reflects the nature of sale through auction, to it.
2.14 “Starting Price” means, with respect to any Lot, the start price of
such Lot, determined by K Auction at its sole and absolute discretion as is
delegated, as reflects the nature of sale through auction, to it.
2.15 “Hammer Price” means, with respect to any Lot, the sale price of such
Lot, being the amount equal to the highest bid confirmed by K Auction at the Final
Auction Closing Time of such Lot in accordance with these Auction Terms.
2.16 "Purchase Price" means, with respect to any Lot, an amount
equal to the sum of the Hammer Price and the Buyer's Premium of such Lot.
2.17 "Reserve Price" means, with respect to any Lot, the minimum
selling price of such Lot agreed in writing between the Seller and K Auction
(if the Consignor is the Seller), or determined by K Auction (if K Auction is
the Seller), as the case may be, prior to the sale of such Lot.
2.18 "Seller" means, with respect to any Lot, the counterparty
to the contract of sale of such Lot, which shall be K Auction or the Consignor.
2.19 “Affiliate” means K Auction and/or its holding company, office,
subsidiary or a corporate entity controlled by or is under common control with
K Auction, and “Group” means the entirety of the organisation including K
Auction and its affiliates.
2.20 “Charity Auction” means an Auction which shall be conducted on the
understanding that a part of the proceeds resulting from the sale of Lots shall
be disbursed, by or at the request of the Seller, to an organisation or
individual, designated by prior agreement, for the purposes of charity or
social welfare.
Article 3 K Auction as agent or as the Seller
Except with respect to any Lot of which K Auction is the Seller, K Auction
shall act as agent of the Consignor (being the Seller) in selling the
Consignor's Lot in an Auction. The contract for such Lot shall be made between
the Seller and the Buyer.
Article 4 Previews
4.1 K Auction will hold preview(s) of Lots scheduled to be sold at Auction,
offered for sale after Auction or offered for sale continuously and irrespective of Auction
Period(s). Such preview(s) shall be open to the
public and free of charge, provided however, that K Auction may, at its sole
and absolute discretion as is delegated, as reflects the nature of sale through
auction, to it, require proof of identity satisfactory to it before admitting
any person to any preview and/or refuse admission of any person to any preview.
4.2 K Auction may give notice of the place, date, time and duration of any
preview in the relevant Auction Catalogue and/or elsewhere. K Auction may, at
its sole and absolute discretion as is delegated, as reflects the nature of
sale through auction, to it, cancel or change the place, date, time and/or
duration of any preview without prior notice. K Auction may, at its sole and
absolute discretion as is delegated, as reflects the nature of sale through
auction, to it, determine not to sell any Lot exhibited at a preview in the
relevant Auction or in any other Auction.
Article 5 Bidder registration
Unless otherwise agreed in writing with K Auction prior to the relevant
Auction Closing Date, prospective Bidders, including first-time prospective
Bidders, shall register and/or apply to place bids in an Auction by completing
and sending to K Auction the relevant registration form and any supplementary
document specified in such registration form and/or requested by K Auction in
accordance with the Important Notices. Registration of prospective Bidders and application
to place bids will be conducted as prescribed in the relevant Important
Notices. However, if a possessor of a mobile phone registered to a domestic
mobile carrier has completed mobile phone identity verification with a domestic
mobile carrier through K Auction’s Online Auction System, he/she will be
considered as having applied to register as a prospective Bidder. K Auction
shall use reasonable endeavours to process any registration and/or any
application to place bids. However, as reflects the nature of sale through
auction, prospective Bidders shall agree that K Auction shall not be held responsible
or liable for any failure or delay in processing such registration and/or
application, or for any error and/or omission by K Auction, its directors,
officers, employees and/or agents in processing such registration and/or
application, howsoever caused, with the exception of cases of willful
misconduct or gross negligence.
Article 6 Estimate Price and Starting Price
6.1 K Auction may provide a low Estimate Price, a high Estimate Price
and/or a Starting Price for each Lot in Korean Won, US Dollar, Hong Kong Dollar
and/or Chinese Yuan in the relevant Auction Catalogue and/or elsewhere during
the relevant Auction Period. K Auction may, at its sole and absolute discretion
as is delegated, as reflects the nature of sale through auction, to it, change
at any time before and up to the time of the sale of any Lot the Estimate Price(s)
or Starting Price of such Lot without prior notice. Estimate Price(s) and
Starting Price will not include the Buyer's Premium and/or any Buyer's Expenses
payable by the Buyer to K Auction. Estimate Price(s) and Starting Price
provided by K Auction are for reference only and shall not serve as definitive
indicators of the market value or Hammer Price of the relevant Lot. K Auction
shall not be held responsible or liable by the Bidder for any Estimate Price or
Starting Price being quoted in public.
6.2 Except as otherwise expressly provided in these Auction Terms and/or
the Important Notices, the Estimate Price or Starting Price shown in US Dollar,
Hong Kong Dollar and/or Chinese Yuan in any Auction Catalogue and/or elsewhere
will be for reference only and all bids and payment shall be in Korean Won. With
respect to Estimate Price or Starting Price provided in an Auction Catalogue
and/or elsewhere, the relevant Important Notices will contain the exchange
rates used for converting the Estimate Price or Starting Price expressed in
Korean Won into US Dollar, Hong Kong Dollar or Chinese Yuan. Such exchange
rates will be obtained on practicable date prior to the printing of the
relevant Auction Catalogue and may change at any time thereafter. No
representation is made that any of the US Dollar, Hong Kong Dollar or Chinese
Yuan amounts shown in any Auction Catalogue and/or elsewhere could have been or
could be converted into Korean Won (or vice versa) at the specified rates, at
any particular rates or at all. Exchange rates provided by K Auction in Auction
Catalogues and/or elsewhere are for reference only, and prospective Bidders
shall be responsible for calculating precise exchange rates. K Auction shall
not be responsible for any error or omission, howsoever caused, arising from or
in connection with, conversion of Estimate Price or Starting Price expressed in
Korean Won into US Dollar, Hong Kong Dollar or Chinese Yuan.
Article 7 Conduct of Auction and conclusion of the sale of a Lot
7.1 K Auction may give notice of the scheduled date, time, duration and
place of an Auction in the relevant Auction Catalogue and/or elsewhere,
provided however, that K Auction may, at its sole and absolute discretion as is
delegated, as reflects the nature of sale through auction, to it, cancel or change
the Auction Period, Auction Closing Date, Auction Closing Time and/or place of,
any Auction at any time without prior notice.
7.2 K Auction may, at its sole and absolute discretion as is delegated, as
reflects the nature of sale through auction, to it, refuse participation of any
person in any Auction and/or reject any bid placed in any Auction.
7.3 The Auction shall proceed in the order of the Lot numbers listed in
the Auction Catalogue, and the bidding increments and Auction Closing Time of
the relevant Lot shall be displayed on the bidding web page of such Lot. Each
Lot shall be sold subject to the Reserve Price of such Lot and K Auction shall
not accept any bids below such Reserve Price in principle. K Auction shall keep
the Reserve Price confidential. The Reserve Price of each Lot shall not exceed
the low Estimate Price on the date of the sale of such Lot.
7.4 A Bidder may place bids subject to and in accordance with, these
Auction Terms and/or the Important Notices. All Bids placed may be recorded or
documented and Bidders shall be deemed to have consented to the recording and
documentation of their conversations by placing bids.
7.5 Provided that the following shall be subject to Clauses 7.6 and 7.7: in relation to any Auction taking place on K Auction’s website, the Bidder
shall bid by selecting a desired Bid amount and clicking on the “Bid” or
“Automatic Bid” button on the bidding web page of the relevant Lot prior to the
Final Auction Closing Time of such Lot.
7.6 With respect to a Lot, K Auction shall use reasonable endeavours to
receive the aforementioned bids. However, as reflects the nature of sale
through auction, prospective Bidders agree that K Auction shall not be held responsible
or liable for any failure or delay in receiving such bids, or for any error
and/or omission by K Auction, its directors, officers, employees and/or agents
in receiving such bid, howsoever caused.
7.7 If, with respect to a Lot, any bid is received by K Auction in
accordance with these Auction Terms and/or the Important Notices, K Auction
shall use reasonable endeavours to place such bid. However, as reflects the
nature of sale through auction, K Auction shall not be held responsible or
liable for any failure or delay in doing so, or for any error and/or omission
by K Auction, its directors, officers, employees and/or agents in placing such
bid, howsoever caused.
7.8 With respect to a Lot, if two or more Automatic Bids have the same bid
price and are the highest bid, the Bidder of the Automatic Bid first received
by K Auction will be declared the Buyer of such Lot.
7.9 K Auction may, at its sole and absolute discretion as is delegated, as
reflects the nature of sale through auction, to it, (i) withdraw any Lot at any
time before the scheduled Auction Closing Date or Auction Closing Time without
prior notice; (ii) combine any two or more Lots without prior notice; (iii)
re-commence during the relevant Auction Period without prior notice, the
auction of any Lot which was previously offered for sale but not sold during
such Auction Period; (iv) in the event of any error arising in relation to, or
any dispute among the Bidders over the validity of, bids placed with respect to
a Lot, determine the Buyer of, continue the bidding process of, cancel the Auction
of and/or recommence the Auction of, such Lot; and/or (v) in the event that any
dispute over the authenticity of any Object, or the validity of the sale of any
Object, has arisen or may, in K Auction's sole opinion, arise, refuse to place
such Object in an Auction, discontinue the bidding process and/or cancel the
sale. In the event that the bidding process or the sale of a Lot is
discontinued or cancelled in accordance with Clause 7.9, the Buyer's sole and
exclusive remedy against K Auction and/or the Seller, as the case may be, shall
be the refund of the Purchase Price if said Purchase Price has already been paid
by the Buyer for such Lot. Neither K Auction nor the Seller shall be liable for
any special, indirect or consequential loss including, but not limited to, loss
of profits or loss of interest. For the avoidance of doubt, K Auction shall not
be liable to pay any interest or indemnify any loss incurred as a result of any
foreign exchange rate fluctuation or otherwise.
7.10 Without prejudice to Clause 7.2, the contract between the Seller and
the Buyer for any Lot shall be considered formed immediately upon confirmation
by K Auction of the highest bid as the Hammer Price of the relevant Lot at the
Final Auction Closing Time of such Lot in relation to any Auction taking place
on K Auction’s website. Failure by the Buyer of such Lot to expressly
communicate any objection immediately upon receiving the Successful Bid
Confirmation form in person or by electronic means (including but not limited
to social networking service platforms, etc) will be considered an acceptance
of and agreement with the terms of the Successful Bid Confirmation form.
7.11 Risk associated with, and responsibility for, a Lot will pass to the
Buyer from the earlier of (i) the expiration of seven calendar days from, but
not including, the date of the sale of such Lot, and (ii) the date of
collection of such Lot by the Buyer. Title to the Lot, however, will not pass
to the Buyer until all amounts payable by the Buyer to K Auction (for itself
and/or on behalf of the Consignor) under these Auction Terms and/or the
Important Notices have been received by K Auction in good cleared funds.
7.12 Except as expressly provided in Clause 7.3, a Consignor shall not,
directly or indirectly, place bids on his/her Lots in an Auction.
Article 8 Marketing materials
K Auction holds the right to use any Lot for any business purpose of K
Auction including posting images and/or information relating to any Lot in any
Auction Catalogue and/or elsewhere. The copyright in all images, illustrations
and/or written material produced by or for K Auction relating to any Lot,
including the contents of any Auction Catalogue and/or elsewhere, shall be and
shall remain at all times the property of K Auction and shall not be used by
the Buyer, nor by any other person, at any time without K Auction's prior
written consent. Neither K Auction nor the Seller makes any representation or
warranty that the Buyer of a Lot will acquire any copyright or other
reproduction rights in it.
Article 9 Buyer's Premium, Seller’s Commission, Applicable Taxes, etc.
9.1 With respect to any Lot in an Online Auction, the Buyer’s Premium
shall be calculated as follows: (i) for any Hammer Price not exceeding
10,000,000 Korean Won, 18% (excluding VAT) of the Hammer Price, or (ii) for any
Hammer Price exceeding 10,000,000 Korean Won, the sum of 18% (excluding VAT) of
the amount up to 10,000,000 KRW (i.e. 1,980,000 Korean Won, including VAT) and
15% (excluding VAT) of the amount exceeding 10,000,000 KRW. In relation to any
Online Auction, specific examples in applying the Buyer’s Premium are as
follows. In the event of any ambiguity regarding the calculation of the Buyer’s
Premium, the Buyer’s Premium as determined according to the following example
shall be final.
|
Hammer
Price (Korean Won)
|
Buyer’s Premium (including VAT)
|
|
~ 10,000,000
|
19.8% of the Hammer Price
|
|
10,000,001 ~
|
1,980,000 + [ ( Hammer Price -
10,000,000 ) x 16.5% ]
|
However, K Auction shall, at its sole and absolute discretion as is
delegated, as reflects the nature of sale through auction, to it, reserve the
right to adjust the rate of the Buyer’s Premium, in which case the Buyer shall
be notified of the adjusted rate of the Buyer’s Premium.
9.2 If any Buyer’s Expenses should arise, the Buyer shall pay the Buyer’s
Expenses in addition to the Buyer’s Premium to K Auction.
9.3 The
seller’s commission shall adhere to the terms of the
Consignment Agreement. If no formal Consignment Agreement has been entered into,
the seller’s commission shall be 10% (excluding VAT) of the Hammer Price, and all expenses listed in these Auction Terms shall
be considered as agreed to and accepted by the Consignor.
9.4 The Consignor shall accept that certain Lots may be subject to VAT,
income tax and/or all other applicable taxes as stipulated by the relevant
taxation laws (“Applicable Taxes”) and shall agree to pay Applicable Taxes and/or
to allow K Auction to withhold and pay Applicable Taxes on behalf of the
Consignor to relevant authorities. However, final responsibility regarding
payment of Applicable Taxes shall rest with the Consignor, and the Consignor
shall be responsible for reviewing the existence and scope of all relevant
taxation laws and for paying Applicable Taxes.
9.5 As certain Lots may be exempt or restricted from laws requiring the
issuance of tax receipts and/or cash receipts for Hammer Prices, prospective
Bidders who wish to receive either receipt shall be responsible for confirming
the possibility of their issuance prior to placing a bid. K Auction shall not
be responsible or liable for any and all consequences resulting from failure on
the part of the Bidder to confirm the possibility of the issuance of tax
receipts and/or cash receipts prior to placing a bid, and said consequences
shall under no circumstances enable the Buyer to cancel or withdraw a winning
bid.
9.6 K Auction may conduct the entirety or a part of an Auction as a
Charity Auction and may reduce or exempt entirely processing fees, seller’s
commissions, expenses incurred in the process of authentication and/or
appraisal, and any other expenses regarding Lots offered for sale in a Charity
Auction.
Article 10 Payments of the Purchase Price and Delivery of Lots
10.1 K Auction will provide to the Buyer an invoice or invoices of the
amounts due from the Buyer to K Auction (for itself and/or on behalf of the
Consignor) under these Auction Terms and/or the Important Notices listing the Lot(s)
purchased by the Buyer in an Auction, the Hammer Price, the Buyer's Premium,
VAT and/or any Buyer's Expenses by email to the email address provided
by the Buyer in his/her registration form as soon as practicable from the date
of the sale of such Lot(s).
10.2 With respect to Lot(s) purchased by the Buyer, the Buyer shall pay to
K Auction (for itself and/ or on behalf of the Consignor) in accordance with
these Auction Terms and/or the Important Notices:
10.2.1 the full invoiced amount; and
10.2.2 any other Buyer's Expenses incurred after the invoice(s) has/have
been sent to the Buyer, with all payments to be completed in full within seven calendar
days from, but not including, the date of the sale of the Lot(s). If the Buyer
has not remitted all aforementioned payments in full to K Auction (for itself
and/or on behalf of the Consignor) by the payment deadline, interest will be
charged at a rate of up to 2% per month on the unpaid amount due up to and
including the date of payment. However, K Auction may, at its discretion, waive
the interest amount in part or in full, and K Auction and a Buyer may, prior to
the sale of the relevant Lot, agree in writing for the Purchase Price of such Lot
to be paid in installments.
10.3 Unless otherwise agreed in writing between the Buyer and K Auction:
(i) the Buyer shall be personally liable to pay to K Auction (for itself and/or
on behalf of the Consignor) in accordance with these Auction Terms and/or the
Important Notices the Purchase Price and/or any Buyer's Expenses payable by the
Buyer with respect to any Lot; and (ii) K Auction will not accept any payment
due to it (for itself and/or on behalf of the Consignor) from any other party
other than the relevant Buyer.
10.4 If, with respect to any Lot, K Auction (for itself and/or on behalf
of the Consignor) does not receive the full amounts payable by the Buyer under
this Clause 10 within seven calendar days from, but not including, the date of
the sale of such Lot, K Auction may, at its sole and absolute discretion as is
delegated, as reflects the nature of sale through auction, to it, and unless
agreed in writing between the Buyer and K Auction:
10.4.1 cancel the sale of such Lot and charge the Buyer the Buyer
Withdrawal Fee which shall be due and payable by the Buyer on demand;
10.4.2 put up such Lot for resale in another Auction;
10.4.3 disclose any personal information on the Buyer to the relevant
Consignor to the extent necessary for that Consignor to claim against the
Buyer;
10.4.4 set off against or pay any amounts which K Auction or any of its Affiliates may owe or be owed by the Buyer in any
other transactions, the outstanding amount remaining unpaid by the Buyer;
and/or
10.4.5 take such other action as K Auction deems necessary or appropriate,
without prejudice to any other rights or remedies available to K Auction by
law.
10.5 The Buyer may cancel his/her purchase of any Lot within seven
calendar days from the Sale date, if agreed previously by K Auction in writing;
10.5.1 by giving written notice of cancellation to K Auction; and
10.5.2 paying to K Auction the Buyer Withdrawal Fee, within seven calendar
days from, but not including, the date of the sale of such Lot. The sale will
be cancelled immediately upon receipt by K Auction of such written notice and
the Buyer Withdrawal Fee.
10.6 Unless otherwise agreed in writing between K Auction and the Buyer, K
Auction will only release the Lot(s) purchased by the Buyer to the Buyer or its
authorised representative in accordance with this Clause 10.6. The Buyer shall
collect, or procure the collection of, the Lot(s) purchased by him/her at
his/her risk and expense within seven calendar days from, but not including,
the date of the sale of the Lot(s), provided however, that K Auction shall not
be obliged to release any Lot:
10.6.1 until full payment of all amounts payable by the Buyer to K Auction
(for itself and/or on behalf of the Consignor) pursuant to this Clause 10 is
duly received by K Auction; or
10.6.2 without being provided with proof of identity of the collector and
(in the case of an authorised representative) proof of authorisation,
satisfactory to K Auction.
10.7 If agreed in writing between the Buyer and K Auction, K Auction will
arrange packaging, delivery and transit insurance of the Lot(s) purchased by
the Buyer at the Buyer's expense and risk. K Auction shall not be responsible
for any damage to, or the loss of, such Lot during packaging and/or the transit
period of such Lot, howsoever caused.
10.8 K Auction will keep the Lot(s) sold in an Auction at no charge until
the expiry of seven calendar days from, but not including, the date of the sale
of such Lot(s), after which the Lot(s) will be stored by K Auction at the
Buyer's risk. If the Buyer fails to collect any Lot within such time period
regardless of whether such failure is caused by K Auction's refusal to release
such Lot due to not having received from the Buyer the full amounts due from
the Buyer to K Auction (for itself and/or on behalf of the Consignor) with
respect to such Lot or not having received proof of identity and/or authorisation
pursuant to Clause 10.6, the Buyer shall pay to K Auction the full amount of
any and all costs including, but not limited to, the storage charge (calculated
based on the storage charge per day of the storage facility operated by K
Auction) from the date of expiry of the aforementioned time period until the
date of collection of such Lot(s) by the Buyer or his/her authorised
representative, costs associated with transporting such Lot(s) to the storage
facility, insurance fees and any and all other applicable fees. However, K
Auction may, at its discretion, waive the aforementioned amount in part or in
full.
10.9 If any Lot is not collected by the Buyer or its authorised
representative within 21 calendar days from, but not including, the date of the
sale of such Lot for whatever reason, K Auction shall not be liable for any
damage to, or the loss of, such Lot(s), howsoever caused.
Article 11 Export and/or import licences
The Buyer shall be responsible for obtaining any relevant export/import
licences and/or permits (the "Licences") required for the
export/import of the purchased Lot(s). K Auction may, at the written request of
the Buyer, introduce to Buyer a shipper to assist in obtaining the necessary
Licences at the Buyer's expense and risk. K Auction does not accept any
responsibility whatsoever with respect to such introduction. Denial of the
Licences and/or delay in obtaining the Licences with respect to any Lot shall
not be a ground for the Buyer to cancel the sale of such Lot or refuse or delay
payment of the full amounts payable by the Buyer to K Auction (for itself
and/or on behalf of the Consignor) pursuant to Clause 10.
In particular, bidders bidding on the Lots considered to be traditional Korean
relics and treasures must fully understand the terms of Korea Cultural Heritage
Protection Act, which prohibits exportation of such Lot.
Article 12 Sale before or after the Auction, Continuous Sale
12.1 If any Lot (an "After Sale Lot") is not sold in an Auction
because no bid matched or exceeded the Reserve Price at such Auction, and the
Consignor had not expressly communicated to K Auction objection to any of the
following in the process of consigning the Lot, K Auction may;
12.1.1 receive bids in writing for such After Sale Lot subject to the
relevant Reserve Price (including the revised Reserve Price after the sale);
and
12.1.2 accept the highest bid placed in accordance with this Clause 12,
provided however, that K Auction shall not be obliged to accept any bid if it
deems, at its sole and absolute discretion as is delegated, as reflects the
nature of sale through auction, to it, that the relevant Bidder has not
provided all documents as may be requested by K Auction pursuant to Clause 12.2
to its satisfaction.
12.2 A Bidder shall, when placing bids for any After Sale Lot, provide K
Auction with any supplementary document as may be requested by K Auction in written notice within the time
specified by K Auction in such notice.
12.3 The sale contract for any After Sale Lot shall occur on the date of
the invoice from K Auction to the Bidder notifying K Auction's acceptance of
his/her bid. The invoice will list the Lot(s) purchased by the Buyer, the
Hammer Price, the Buyer's Premium, VAT and/or any Buyer's Expenses, due from
the Buyer to K Auction (for itself and/or on behalf of the Consignor).
12.4 Clauses 1, 2, 3, 6, 7.2, 7.3, 7.6 to 7.9, 7.11, 7.12, 8, 9, 10.2 to
10.9, 11, 13 to 19 of these Auction Terms and/or the relevant provisions in the
Important Notices shall apply with respect to the sale of any After Sale Lot in
accordance with this Clause 12 as applicable and with the necessary amendments.
12.5 K Auction may, at its sole and absolute discretion, select Lots to be
sold before the Auction for higher than the Reserve Price, in which case the terms
for sale after the Auction shall apply.
12.6 K Auction may, subject to the terms of the Consignment Agreement,
offer Lots for sale continuously and irrespective of Auction Period(s), in
which case the terms for sale before or after the Auction shall apply.
Article 13 No representations, warranties and liabilities
13.1 A Consignor and/or Bidder agrees and acknowledges that all statements
with respect to any Lot including, but not limited to, statements on
authorship, title, medium and/or size, contained in any Auction Catalogue
and/or elsewhere in writing or made orally by any of K Auction, its directors,
officers, employees and/or agents and/or the Seller at any time, are statements
of opinion and not statements of fact. Insofar as is permitted by law and except
as otherwise expressly provided in this Clause 13, Clause 14 and/or Clause 15,
all representations, warranties, conditions, guarantees and stipulations,
express or implied, statutory, customary or otherwise with respect to any Lot
are and shall be expressly excluded (including, but without limitation,
warranties, conditions as to title, rights to dispose, quiet possession,
freedom from encumbrances, merchantable or satisfactory quality, fitness for
purpose, description, size, quality, attribution, authenticity, medium,
provenance or whether such Lot is subject to copyright and/or whether the
Consignor and/or the Buyer acquires copyright in such Lot).
13.2 Insofar as is permitted by law, the Lots shall be sold on an "as
is" basis as at the time of sale of the Lots (whether or not the Buyers
are in attendance in person at the Auction). Descriptions in the Auction
Catalogue and/or elsewhere may on occasion make reference to particular defects
or deficiencies of a Lot but the absence of any such description with respect
to any Lot shall not mean that such Lot is without defects or deficiencies. The
Bidder shall be responsible for conducting his/her own research and satisfying
himself/herself of the condition of the Lots, including, but not limited to,
damage and/or restoration of the Lots and with respect to any entries provided
in the Auction Catalogue and/or elsewhere. K Auction will only accept a bid
from a Bidder with respect to a Lot on the assumption that the Bidder has
satisfied himself/herself of the condition of such Lot and with respect to any
entries provided in the Auction Catalogue and/or elsewhere.
13.3 Insofar as is permitted by law and except as otherwise expressly
provided in these Auction Terms and/or the Important Notices, neither K Auction
nor the Sellershall be liable, with the exception of
cases of willful misconduct or gross negligence, to any Bidder or Buyer for:
13.3.1 errors or omissions in information, whether oral or written,
provided by any of K Auction, its directors, officers, employees and/or agents
and/or the Seller, howsoever caused;
13.3.2 acts or omissions by any of K Auction, its directors, officers, employees
and/or agents and/or the Seller in relation to the conduct of any Auction
and/or for any matter relating to the sale of any Lot, howsoever caused.
Article 14 Limited Warranty
14.1 K Auction makes no direct warranties with respect to any Lot. However,
with respect to any Lot that is an Artwork but excepting Lots offered for sale
in Charity Auctions (“Artwork Lot”), K Auction warrants that the headline
printed in BOLD BLACK regarding such Artwork Lot on the first line in the
Auction Catalogue (the "Headline") (as may be amended by any saleroom
notice displayed in the auction hall or K Auction official website during the
relevant Auction Period) is true and accurate as at the date of the sale of
such Artwork Lot unless otherwise specified in the Auction Catalogue (as may be
amended by any saleroom notice displayed in the auction hall or K Auction
official website during the relevant Auction Period) (the "Limited
Warranty").
14.2 K Auction shall not be liable for breach of the Limited Warranty with
respect to any Artwork Lot unless a Claim Letter (defined below) with respect
to such Artwork Lot is given by the Buyer to K Auction in accordance with this
Clause 14 before the expiry of three years from, but not including, the date of
the sale of such Artwork Lot (the "Warranty Period").
14.3 Subject to Clause 14.2, any Buyer wishing to claim under the Limited
Warranty with respect to any Artwork Lot shall (i) send to K Auction a letter
(the "Claim Letter") stipulating the date of the sale of such Artwork
Lot, the Artwork Lot number and the grounds for his/her claim under the Limited
Warranty within three months from, but not including, the date on which he/she
became aware of a possible/actual breach of the Limited Warranty; and (ii)
return to K Auction the relevant Artwork Lot in the same condition as at the
time of the sale of such Artwork Lot.
14.4 In the event of a dispute between the Buyer and K Auction with
respect to the grounds of the Buyer's claim under the Limited Warranty, K
Auction may require the Buyer to obtain, at the Buyer's expense, written
opinions of two experts in the field mutually acceptable to K Auction and the
Buyer. K Auction shall not be bound by such written opinions provided by the
Buyer and may seek additional advice from other experts in the field at its own
cost.
14.5 The Buyer shall not be entitled to claim under the Limited Warranty with
respect to any Artwork Lot if:
14.5.1 the relevant Headline corresponded to the generally accepted
opinion of scholars or experts at the time of the sale of such Artwork Lot;
14.5.2 the catalogue description, saleroom notice or K Auction official
website indicated that there were possibilities of dissenting opinion(s) from
scholar(s) or a group of experts on the relevant Headline; or
14.5.3 the breach of the Limited Warranty can be proved only by means of
either a scientific process not generally accepted for use until after
publication of the relevant Auction Catalogue or a process which at the date of
publication of the relevant Auction Catalogue was unreasonably expensive or
impractical or likely to have caused damage to the Artwork Lot.
14.6 In the case of a breach of the Limited Warranty with respect to an Artwork
Lot, K Auction shall cancel the sale of such Artwork Lot and refund to the
Buyer the Purchase Price paid by the Buyer in relation to the Artwork Lot.
14.7 In the event of a breach of the Limited Warranty with respect to an Artwork
Lot, the Buyer's sole and exclusive remedy against K Auction and/or the Seller
shall be the cancellation of the sale and refund of the Purchase Price paid by
the Buyer for such Artwork Lot. Neither K Auction nor the Seller shall be
liable for any special, indirect, consequential loss including, but not limited
to, loss of profits or loss of interest. For the avoidance of doubt, K Auction
shall not be liable to pay any interest or indemnify any loss incurred as a
result of any foreign exchange rate fluctuation or otherwise.
14.8 The Buyer shall not assign or transfer the benefits of the Limited
Warranty. Unless agreed in writing between K Auction and the Buyer, only the
Buyer of the relevant Artwork Lot as shown on the invoice issued by K Auction
shall be eligible to claim under the Limited Warranty, provided that such Buyer
must have remained the owner of the Artwork Lot without disposing of any
interest in it to any third party.
14.9 In the event that K Auction assumes, in the stead of the Consignor,
the liability for a breach of the Limited Warranty or any other such liability,
the Consignor shall return to K Auction all monies received from K Auction with
respect to the relevant Lots and indemnify K Auction for all other
consequential losses.
14.10 In the event that K Auction receives from the Consignor documentation
regarding authentication and/or appraisal and/or other information and provides
the Buyer with any of the aforementioned documentation, K Auction shall warrant
only that such documentation provided to the Buyer is identical to such
documentation received from the Consignor. K Auction makes no warranties
regarding the authenticity or validity of any documentation received from the
Consignor or the contents thereof.
14.11 These Auction Terms in no part shall limit K Auction from providing
additional warranties or services, as necessitated by the nature of the Lot(s)
and/or any other relevant matters, to the Buyer. However, it shall be
understood that such additional warranties or services provided by K Auction
are singular in nature, and K Auction shall not be responsible for continuing
to provide such additional warranties or services.
Article 15 Limited Liability
15.1 Without prejudice to Clauses 13 and/or 14 above, a Bidder's or
Buyer's sole and exclusive remedy to any claim made by it against K Auction
and/or the Seller arising out of, or in connections with these Auction Terms
and/or the Important Notices with respect to any Lot shall be damages up to the
Purchase Price of such Lot. Neither K Auction nor the Seller shall be liable
for any special, indirect, consequential loss including, but not limited to,
loss of profits or loss of interest. For the avoidance of doubt, K Auction
shall not be liable to pay any interest or indemnify any loss incurred as a
result of any foreign exchange rate fluctuation or otherwise.
15.2 These Auction Terms in no part shall exclude or limit K Auction's
liability with respect to any fraud, death or personal injury arising out of,
or in connection with, any action or inaction by any of K Auction, its
officers, employees and/or agents in relation to the conduct of any Auction
and/or sale of Lots, if such is proven to be the result of willful misconduct
or gross negligence on the part of K Auction, its officers, employees and/or
agents.
Article 16 Amendment to these Auction Terms and the Auction Catalogue
16.1 K Auction may, within the bounds of legal provision including but not
limited to those regarding the regulation of Terms and Conditions, amend the
provisions of these Auction Terms. If necessary, K Auction shall be responsible
for explaining the key provisions of these Auction Terms in order to prevent confusion
among clients.
16.2 K Auction may, at its discretion and at any time, amend the
provisions of these Auction Terms. Any such amendments shall be posted on the
first page of K Auction’s official website at least seven calendar days prior
to the effective date of any amendments relating to general terms, or at least
thirty calendar days prior to the effective date of any amendments relating to
key provisions or amendments disadvantageous to the client, and the relevant
information shall be modified in the Auction Catalogue and/or elsewhere. Any such
amendments shall be posted as a saleroom notice or on K Auction’s official
website during the relevant Auction Period.
16.3 K Auction may, at its discretion and at any time, amend any
information in an Auction Catalogue and/or elsewhere including, but not limited
to, the Important Notices, and any such amendments shall be posted as a
saleroom notice or on K Auction’s official website during the relevant Auction
Period.
Article 17 Data Protection
17.1 Consignors, Prospective Bidders, Bidders and/or Buyers may be
required to provide personal data in connection with placing bids for, and
purchasing of, Lots at the Auction, and by agreeing to these Auction Terms,
Consignors, Prospective Bidders, Bidders and/or Buyers agree to the collection
and use of such personal data. All personal data may be used for the following
purposes: (i) all matters connected to the management and operation of K
Auction's business and the marketing and supply of K Auction's services; (ii)
the transfer of such data to any place in and outside of Korea; and/or (iii)
any purpose relating to or in connection with compliance with any law,
regulation, court order or order of a regulatory body.
17.2 All personal data, client data and information regarding Lots shall
be kept confidential as trade secrets of K Auction and Consignors, Prospective
Bidders,
Bidders,Buyers, agents and others shall agree to such. However, subject to
the provision of any applicable law, may be disclosed to or used by any of the
following companies or persons, whether in or outside of Korea: (i) K Auction,
its Affiliates and/or the Group; (ii) any director, officer or employee of the
Group, but only when carrying out the business of the Group; (iii) any agent,
contractor, third party service provider or other person authorised by the
Group to provide administrative, telecommunications, computer or insurance, shipping
or any other services to the Group in connection with the operation of its
business; (iv) credit reference agencies and, in the event of default, debt
collection agencies; (v) any other person under a duty of confidentiality to
the Group; and/or (vi) any person to whom the Group is under an obligation to
make disclosure under the requirements of any law, regulation, court order or
order of a regulatory body.
17.3 In general, and subject to certain exemptions, Consignors,
Prospective Bidders, Bidders and/or Buyers shall be entitled to: (i) request
access to his/her personal data, which shall be provided within 40 days; (ii)
request the correction or deletion of his/her personal data, which shall be
made within 40 days; and/or (iii) be given reasons if a request for access,
correction or deletion is refused or unable to be complied with within 40 days.
17.4 Any request for access to and/or correction of Consignors,
Prospective Bidders, Bidders and/or Buyers' personal data, or for information
regarding K Auction's data protection policies and practices and the kinds of
personal data held by K Auction, shall be sent to K Auction in accordance with
Clause 18.5. K Auction will have the right to charge a reasonable fee for the
processing of any data access request.
17.5 If a Consignor, Prospective Bidder, Bidder or Buyer is a corporate
entity, K Auction shall not use the personal data of such entity's data
subjects for any purpose other than the purposes for which such entity notified
its data subjects at the time of the collection of the data by such entity or a
purpose directly related to that purpose (except where K Auction has obtained the
consent of the data subject). The corporate prospective Bidder, Bidder or Buyer
by signing the relevant registration form, confirms that (i) it has notified
its data subjects that their personal data may be used for the purposes
specified in Clause 17.1 and (ii) it agrees to indemnify K Auction in relation
to any loss or damage suffered by K Auction as a result of its failure to notify
its data subjects as set out in (i) above.
Article 18 Miscellaneous
18.1 Any and all payments due under these Auction Terms and/or the
Important Notices shall be payable in Korean Won. If the Buyer and K Auction
agrees in writing for the Buyer to pay any amount due to K Auction (for itself
and/or on behalf of the Consignor), or for K Auction to pay any amount due to
it, in any currency other than Korean Won, the Buyer shall be liable to pay any
currency costs including, but not limited to, bank commissions and/or charges
incurred by K Auction in converting the Korean Won amounts into such other
currency. Any currency conversion shall be determined by K Auction based on the
rate for Korean Won provided by Seoul Money Brokerage Service on the date of
payment or the specific date determined by K Auction and K Auction's decision as
to such rate will be conclusive. For the avoidance of doubt, K Auction shall
not be liable to indemnify any loss incurred as a result of any foreign
exchange rate fluctuation or otherwise.
18.2 Any and all payments under these Auction Terms and/or Important
Notices shall be made in cash or equivalent, including electronic remittance,
cashier cheques and/or bank money orders in good cleared funds and in
accordance with these Auction Terms and/or the Important Notices. With respect
to any payment under these Auction Terms and/or the Important Notices, if the
payment due date is not a Business Day, then the immediately following Business
Day will be deemed to be the payment due date.
18.3 All sums payable by the Buyer to K Auction are exclusive of any relevant
tax owed by the Buyer. The Buyer shall be responsible for paying such tax at
the rate and time as required by the relevant law.
18.4 If any part of these Auction Terms and/or the Important Notices is
found by any court to be invalid, illegal or unenforceable, that part may be
discounted and the rest of these Auction Terms and/or the Important Notices
shall continue to be valid and enforceable to the fullest extent permitted by
law.
18.5 All notices, requests, claims, demands and other communications to K
Auction under these Auction Terms and/or the Important Notices shall be in
Korean or English in writing and shall be given or made (and shall be deemed to
have been duly given or made upon receipt) by delivery in person, by registered
mail, by facsimile with receipt confirmed (followed by delivery of an original
via registered mail), by email with receipt confirmed by K Auction (followed by
delivery of an original via registered mail) or by registered mail to K Auction
at the following address:
K Auction Inc.
Art Tower, 23, Eonju-ro 172-gil, Gangnam-gu, Seoul, 06017, Korea
Tel (02) 3479 8888
Fax (02) 3479 8867
Email: art@k-auction.com
Notices to Consignors, Bidders and Buyers shall be addressed to the address or
email address specified by them in the relevant registration form.
18.6 Time shall be of the essence of these Auction Terms and/or the
Important Notices both as regards any dates, times and periods mentioned and as
regards any dates, times and periods which may be substituted for them in
accordance with these Auction Terms or by agreement in writing between the
parties.
18.7 No waiver by or on behalf of K Auction of any requirement of or any
rights under these Auction Terms and/or the Important Notices shall release any
other party(ies) from the full performance of its/their remaining obligations
under these Auction Terms and/or the Important Notices. No single or partial
exercise of or failure or delay in exercising, on the part of K Auction, any
right, power or remedy under these Auction Terms and/or the Important Notices
or the granting of time by K Auction shall prejudice, affect or restrict the
rights, powers and remedies of K Auction under these Auction Terms and/or the
Important Notices, nor shall any waiver by K Auction of any breach of these
Auction Terms and/or the Important Notices operate as a waiver of or in
relation to any subsequent or any continuing breach of these Auction Terms
and/or the Important Notices.
18.8 These Auction Terms and/or the Important Notices as amended from time
to time in accordance with these Auction Terms set out the entire agreement and
understanding between the parties relating to the subject matter hereof to the
exclusion of any terms implied by law which may be excluded by contract and
supersedes any previous written or oral agreement between the parties in
relation to the matters dealt with in these Auction Terms and/or the Important
Notices as amended from time to time in accordance with these Auction Terms
(except with respect to the rights and obligations of the Consignor and K
Auction against each other in relation to the consignment of Lots by the
Consignor to K Auction which shall be regulated by the relevant Consignment
Agreement). It is agreed that no party has been induced to enter into these
Auction Terms and/or the Important Notices by any representation, warranty or
undertaking not expressly incorporated in.
18.9 In the case of any ambiguity or discrepancy between the English, Chinese
and/or Korean version of these Auction Terms, the Korean version shall prevail.
Article 19 Jurisdiction and governing law
19.1 These Auction Terms shall be governed by the laws of Korea. The Seoul
Central District Court shall have exclusive jurisdiction to settle any disputes
which may arise out of or in connection with these Auction Terms and/or the
Important Notices. All Consignors, Bidders and Buyers irrevocably consent to
the service of process or any other documents in connection with proceedings in
any court by facsimile transmission, delivery in person, delivery by mail or in
any other service manner permitted by Korean law, at the law of
the place of service or the law of jurisdiction where proceedings are
instituted, at the last address of the Consignors, Bidders or the Buyers notified
to K Auction or any other usual address.
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