Crawler Excavator Model XN 10, Mini Excavator

CONDITIONS OF SALE BY ON-LINE AUCTION

1: On-Line Auction Sale Conditions

These on-line auction sale conditions, together with any special conditions or ‘Notices to Purchasers’, are the only terms and conditions subject to which Kumar & Company Limited (“KCL”) acting as agents for the Vendor will deal with buyers. Bidding for any lot shall be deemed to be an acceptance of these conditions and any conditions in the Notices to Purchasers. If there is any inconsistency between any of these conditions and anything in the Notices to Purchasers, then those in the Notices to Purchasers shall prevail.

Unless otherwise agreed I writing KCL act as agents for the vendor in any sale by auction and not as principal.

2: Inspection and Description

2.1 Buyers have a responsibility to make their own inspection and investigation of the lots at the time(s) and at the premises specified and to satisfy themselves on all matters affecting the lots and to inspect and satisfy themselves prior to the sale as to the condition and description of a lot its fitness and suitability for purpose. Bidding is restricted to viewing days as a general rule however in exceptional circumstances buyers should contact KCL or the vendor in order to arrange a viewing should they wish to be able to view any lot prior to bidding.

2.2 Goods are believed to be correctly described however it is likely that on occasion the description may have errors in it and that there may be undisclosed or unknown faults. All goods are sold subject to any faults, imperfections and errors of description.

2.3 Neither the Vendor nor KCL, their directors, servants, advisors or agents makes or gives, nor has any person in the employment of KCL any authority to make or give, any representation or warranty in relation to any lots  or items for sale.

3: Limitation of Liability

3.1 Neither the Vendor nor KCL, their servants or agents shall be liable for any loss or damage suffered by the Buyer arising out of or in connection with any defects or deficiencies in any lots purchased, errors of description in the auction catalogue, any misstatements as to any matter affecting the lots or the failure of the lots to fulfil the functions for which they were intended.

3.2 KCL’s and the Vendor’s total liability for breach of contract or negligence is limited to the Bid Price which is the price bid and paid in cleared funds by the Buyer.

3.3 Neither KCL nor the Vendor shall be liable for any indirect or consequential loss or damage (whether for loss of profit, loss of business or otherwise) incurred by the Buyer howsoever arising.

3.4 Nothing in these conditions excludes or limits the liability of KCL or Vendor for death or personal injury caused by their negligence or fraudulent misrepresentation.

3.5 Nothing in these conditions (except as agreed herein) shall prejudice the statutory rights of a consumer who shall be bound by these conditions only insofar as they are consistent with such statutory rights.

3.6 KCL has entered into this agreement as agents for and on behalf of the Vendor and neither they their firm, directors, partners, employees, advisers, representatives or agents shall incur any personal liability whatever in respect of any of the obligations undertaken by the Vendor or in respect of any failure on the part of the Vendor to observe, perform or comply with any obligations under this agreement or in relation to any associated arrangements or negotiations or under any document or assurance made pursuant to this agreement. 

4: Conduct of Sale

4.1 KCL reserves the right in its absolute discretion to refuse admission to its premises and grounds or those, which it has, authority over to any person or persons.

4.2 The conduct of the sale shall be at KCL’s sole discretion and  KCL reserve the right to refuse any bids without giving any reason.

4.3

4.3.1 If any dispute of whatsoever nature relating to a bid shall arise, such dispute shall be determined by KCL in their absolute discretion and whose decision shall be final and binding on all parties and this clause shall be paramount unless clause 4.3.2.1 is triggered.

4.3.2

4.3.2.1 In case clause 4.3.1 shall prove unenforceable then such disputes referred to in clause 4.3.1 shall be determined in accordance with the following provisions of this clause 4.3.2. Clause 4.3.2.2 shall apply to all other disputes mentioned therein.

4.3.2.2 In relation to any dispute, controversy or claim arising out of or relating to this agreement, including any question regarding its breach, existence, validity or termination or the legal relationships established by this agreement, shall be finally resolved by arbitration under the UNCITRAL Rules in force at the date of this agreement. It is agreed that:

(a) the tribunal shall consist of one arbitrator (who is to be a practicing barrister;

(b) in default of the parties' agreement as to the arbitrator, the appointing authority shall be the Chartered Institute of Arbitrators in London;

(c) the seat of the arbitration shall be London;

(d) the law governing this arbitration agreement shall be English; and

(e) the language of the arbitration shall be English.

4.4 Each bidder must register prior to submitting any bids in On-Line sales. KCL reserves the right to reject any registration at its sole discretion.

4.5 The Vendor and KCL reserve the right to fix a reserve price for any lot.

4.6 No bid may be withdrawn after the close of bidding. The Vendor or KCL have absolute discretion to withdraw consolidate or divide any lot at any time.

4.7 Ordinarily the highest bidder for each lot at the close of bidding shall be the Buyer, however this shall always remain subject to approval by KCL and the Vendor.

4.8 The Sale Price is exclusive of the buyer’s premium and VAT. The highest bid at the close of bidding subject to approval by KCL and Vendor also marks a conclusion of a contract of sale between the Vendor and the Buyer.

4.9 In making a bid for any lots, the Buyer does so as principal.

4.10 The Buyer will be held personally and solely liable for a bid unless KCL have prior to any bid being made or received agreed in writing with the Buyer that that bidder will do so on behalf of an identified third party acceptable to KCL in which case unless otherwise agreed I writing with KCL both the Buyer and the third party will each be jointly and severally liable for all obligations arising from the bid (to include the price, premium and VAT) and the third party shall be bound by these conditions (as will its agent) in the same way as if it were bidding personally.

4.11 All payments are to be made to KCL’s nominated bank account and not to the Vendor directly. Payments made directly to any Vendor shall specifically not extinguish any debt due under this contract.

5: Risk and Title

5.1 As from the date and time the Buyer is declared, all risks in and relating to the Goods purchased, shall pass to the Buyer and the Buyer is strongly advised to effect insurance for these risks at once.

5.2 In no circumstances will KCL or the Vendor be responsible if any Goods or part thereof be lost, stolen, damaged or destroyed after the Buyer is declared.

5.3 The Vendor shall only sell such right title or interest (if any) in the Goods that he may have. Neither KCL nor the Vendor warrants the Vendor’s good title to any of the Goods and if it is found that the Vendor does not have title or unencumbered title to any of the Goods purported to be sold under these conditions the Buyer expressly agrees that it shall have no right either to rescind the contract or to claim damages or a reduction in the consideration paid or payable under the contract. The buyer shall be responsible to determining the title to any goods and it is agreed that in the circumstances this is fair in view of the price paid. Title to each of the Goods will not pass until: -

(a) all debts owed by the Buyer to KCL (whether part paid secured or otherwise) are settled, for the avoidance of doubt the debts shall not be settled until (where payment or part payment is made by cheque) all cheque(s) in question have been cleared and funds received in such manner that they are not subject to recall in any manner; and

(b) such Goods have been removed from the premises at which the sale is held or where the Goods are being stored in their entirety.

6: Removal

6.1 No lot or part thereof can be removed until payment in cash or approved Bankers Draft has been made in full or (where any part of the payment was made by cheque) the cheque has cleared in KCL's RICS Regulated client account in unencumbered funds.

6.2 No lot shall be removed without the authority of KCL and unless under the supervision of KCL's servants or agents.

6.3 Removal shall take place only up to 4.00 pm and must be completed by 4.00 pm on the day following the sale (and in every case time shall be of the essence) unless the Notice to Purchasers otherwise specify or written authority is obtained from KCL for clearance after that time.

6.4 The Buyer has no right to anything not in the auction catalogue.

6.5 Delivery of lots sold will be made only to the declared Buyer and no transfer of any lot or part of a lot to any other person will be recognised.

6.6 Prior to the removal of any lot the Vendor may rescind the contract for the sale of that lot and refund to the Buyer any money paid by the Buyer for the lot should any third party claim title to or possession of any part of the lot.

6.7 The Buyer will be responsible for removal of lots at his own expense and costs and must provide his own labour, and equipment. KCL require that in pursuit of safe working practice all equipment used for lifting and transportation should be covered by appropriate insurance and registration documents (in particular but not limited to lifting equipment and fork lift trucks).  The Buyer shall at all times comply with all and any relevant health and safety legislation.

6.8 Such documentation shall be produced to KCL by the Buyer on request for inspection and if the Buyer fails to produce such documentation KCL reserve the right to refuse to clear the lot and/or rescind the sale in which event the provisions of condition 8 will apply.

6.9 Appropriate personal protective equipment must be worn at all times during these activities and due regard paid to safe material handling practices.

7: Damage to Premises

7.1 The Buyer shall be responsible for the removal of all goods purchased at his own expense and risk and such removal must be carried out safely and lawfully and in accordance with any conditions of sale of which the Buyer is notified.

7.2 For the avoidance of doubt removal includes where applicable disconnection from the mains electricity supply and the detachment of any lots which are fixed.

7.3 All electrical installations must be left in a safe condition during and after the removal and the use of explosives or flame cutting equipment or any other potentially hazardous or inflammatory process shall not be permissible on the site without the express written consent of KCL.

7.4 The Buyer shall be responsible to insure against and to make good any injury or damage to persons or property caused by the Buyer, their employees, carriers, servants or agents detaching, disconnecting or removing any goods purchased by the Buyer.

7.5 The Buyer shall produce his insurance documentation to KCL on request and if the Buyer fails to produce such documentation KCL reserve the right to refuse to clear the lot and/or rescind the sale.

7.6 The Buyer shall indemnify KCL for any damage or loss, which KCL may suffer in respect of loss, damage or injury, suffered by the Buyer’s agents or employees or any third party arising from the removal.

7.7 At its discretion KCL may require the payment of a monetary bond to KCL prior to and/or during the removal, which will be refunded on the removal being completed to KCL’s satisfaction.

7.8 If the Buyer refuses to deposit such monies, the Vendor or KCL may refuse the Buyer access to the premises for the purposes of removing the lot purchased by them and/or rescind the sale in which event the provisions of condition 8 will apply.

7.9 KCL reserve the right to stop the removal of a lot by a Buyer, his agents or employees, if it appears to KCL or its agents or employees that the removal is being carried out in an unsafe or unsatisfactory way.

8: Default by Buyer

Upon failure by the Buyer for whatsoever reason:-
(i) to pay any deposit in full if required under these Conditions of Sale;
and/or
(ii) to pay the purchase price in full on the due date;
and/or
(iii) to provide any documentation required under these conditions;
and/or
(iv) to remove the goods in a safe, lawful and otherwise generally satisfactory way;
and/or
(v) to remove any lot from the premises on or before the date specified for removal;

And/or

(vi) to comply with these conditions of sale

The Vendor or KCL shall be entitled to rescind the contract forthwith without incurring any liabilities to the Buyer and, without prejudice to any claims of the Vendor and/or KCL against the Buyer arising from breach of contract or otherwise, upon rescission as aforesaid the following provisions apply:

(a) all monies deposited in part payment will be forfeited and used to pay the Vendor's and/or Kumar & Company Limited's expenses referred to in paragraph (d) below;

(b) if the lots have been removed in breach of any these conditions herein, the Vendor and/or Kumar & Company Limited, their servants or agents may enter the premises of the Buyer to recover such lots and the Buyer gives KCL and the vendor and their respective agents irrevocable authority to do so using reasonable force if necessary in order to recover such lots;

(c) lots may be re-sold or otherwise disposed of by KCL in the manner they feel appropriate at their sole discretion and any deficiency arising upon the resale together with the expenses of it shall be due as a debt from the Buyer in default upon the first sale. The Buyer consents to such resale on KCL’s conditions of business applicable at the time of resale. Neither KCL nor the Vendor shall be liable to account to the Buyer in the event of a re-sale at a higher price than the price contracted to be paid by the Buyer. The Buyer waives any claim in such a case that he may have title to the lot and agreed that any re-sale price shall be deemed commercially reasonable. The Buyer indemnifies the Vendor and KCL for any losses occasioned by then as a consequence of such subsequent sale;

(d) the Buyer will be responsible from the specified time for final removal for all losses and expense incurred by the Vendor and/or KCL including storage, security and removal expenses, the costs of re-selling or disposing of lots and KCL's commission.

9: KCL as Agent

9.1 KCL act only as Agents for and on behalf of the Vendor and shall not be held responsible for any act, omission or default on the part of either the Vendor, bidders or the Buyer.

9.2 Any concluded contract of sale is made directly between the Vendor and the Buyer.

10: Accident or Damage

10.1 Neither KCL nor the Vendor will accept any responsibility for any accident, (except for that arising out of its negligence, or the negligence of its agents or employees, resulting in death or personal injury to the extent permitted by law) howsoever caused to any person which may occur whilst on KCL's premises, the Vendor's premises or such other premises used to hold the auction or to store the lots before during or after the sale and any person entering the premises does so at his own risk and is deemed to have notice of the condition of the premises and their contents.

11: The Consumer Protection Act 1987

No lots are sold as new.

12: Health & Safety At Work

12.1 It is expressly brought to the Buyer’s attention and that of potential buyers, at the time of sale, any item of plant, machinery or equipment contained in the goods may not comply with the Health and Safety at Work Etc. Act 1974; the Environmental Protection Act 1990; Construction Design and Management Regulations 1994 or any other Act of Parliament or regulations thereunder governing the use of that plant, machinery or equipment in a working environment.

12.2 Buyers of any such plant, machinery or equipment are hereby required to ensure so far as reasonably practicable that such item will be safe and without risk to health and that the use of any such items at a place of work within the EEC & the United Kingdom does not contravene any such Act of Parliament or regulation applicable to such use.

13: Dangerous Substances

13.1 It is expressly brought to the attention and/or of Buyers (and potential buyers) that certain types of plant or main service installations could contain blue and white asbestos, dangerous chemicals and hazardous waste which if not handled correctly during their removal from the premises could be in breach of the Health and Safety at Work Etc. Act 1974 Sections 2-9 Control of Substances Hazardous to Health Regulations 1988 (COSHH) or other current legislation regulating the use of such substances in a working environment.

13.2 The Buyer shall ensure so far as is reasonably practicable that they comply with the Health and Safety at Work Etc. Act 1974, COSHH and other current legislation in connection with the removal, handling and transport of such dangerous substances and or hazardous waste or shall employ a specialist contractor to remove them.

13.3 The Buyer shall, on request, satisfy KCL in relation to its removal procedures, and an approved and licensed contractor must undertake the removal of waste materials.

13.4 The Buyer will indemnify KCL and the Vendor, their respective servants or agents against any loss, damages or expenses suffered by them as a result of the Buyer’s or a sub -contractor’s failure to comply with this legislation.

14: Notices

14.1 Any notices or other communications shall be in writing and, if sent by post, shall be deemed to have been received by the addressee on the second working day after posting or, if the addressee is outside the United Kingdom, on the fifth working day after posting.

14.2 If any written notice is delivered by hand, it shall be treated as having been received at that time. Any notice sent to KCL shall be sent to KCL’s address as set out in the auction catalogue, or displayed on the Kumar & Company Limited’s web site specific to that sale.

14.3 Any notice, which KCL send to, the Buyer may be sent to the Buyer’s last address known to KCL.

15: Third Party Rights

15.1 Save as expressly provided in these conditions, no term of these conditions shall be enforceable under The Contracts (Rights of Third Parties) Act 1999 by a third party.

16: Governing Law

16.1 These Conditions and any Conditions contained in the Notices to Purchasers, along with all associated transactions and all connected matters shall be governed and construed in accordance with English Law

17: Severability

17.1 In the event that any provisions of these conditions shall be held unenforceable for any reason, the maximum remaining conditions shall remain in full force and effect.

18: General

18.1 It is agreed that this contract is fair in the circumstances and that all parties hereto have read and agreed to these terms. Further it is agreed that all parties have had the opportunity to take legal advice prior to entering into the auction process.

18.2 to the maximum extent permitted by law the provisions of the Sale of Goods Act 1979 (as amended) are excluded form this sale.

18.3 In the case of any doubt as to meaning these terms and conditions shall be construed to be in favour of KCL.

18.4 In the event of any default by the Buyer in paying any sums due under this agreement to KCL or the Vendor (whether payable by agreement or by an order of a court or otherwise) the Buyer shall pay interest on such sum at the rate of 15% above the base rate from time to time of National Westminster Bank plc from the date when payment was due until all such monies have been paid in full together with all interest thereon.  Such interest shall accrue from day to day.

18.5 The Buyer:

18.5.1 warrants and represents that it will comply with all relevant provisions of the Data Protection Act 1998 in its processing and use of any personal data transferred to it or of which it obtains possession pursuant to this agreement including contacting any persons to advise of the change of ownership of any customer list and allowing such persons the opportunity to object to their personal data being held or used by the Buyer. 

18.5.2 shall indemnify and keep indemnified KCL and the Vendor and each of them against any claim or loss arising from or in relation to the transfer of any personal data to the Buyer or a failure by the Buyer to comply with the terms of Data Protection Act 1998 and clause 18.5.