Terms and Conditions
1. APPLICATION OF TERMS
1.1 These are the terms and conditions that apply to Sales, together with the Special Conditions, and to the use of Our Website. Your attention is drawn in particular to clauses 5.1, 6.1, 6.2 and 6.3 of the Terms and Conditions.
1.2 Please read these terms and conditions carefully before bidding on any Lots or using Our Website. You should understand that by accessing Our Website or bidding on any Lots, You agree to be bound by these terms and conditions, subject to any amendments contained in the Special Conditions. In the event of any conflict between these terms and conditions and the Special Conditions, the Special Conditions shall prevail. No offers or Bids made by You shall alter or qualify these terms and conditions unless We specifically confirm this in writing.
In these terms and conditions the following words and expressions shall have the following meanings:-
"The Articles of Roup" are available (separate from the Catalogue) on Our Website immediately before the Auction;
“Auction” means an Online Auction or an Offline Auction (as defined below) and in the case of Heritable Property is the Roup of Sale held on the date of the sale;
"The Auctioneer" shall be the Judge of Roup named in the Minute of Preference and Enactment and shall have the power to determine whatever questions and differences which may occur at the Roup;
“Autobid” means a Bid made using the autobid function on Our Website, where permitted by Us;
“Bid” means any offer to buy a Lot (whether as part of an Auction or any other type of sale) and whether an Autobid or otherwise;
“Bidder” means any party making a Bid;
“Buyer” means a party who buys a Lot from a Vendor;
“Buyer’s Premium” means the premium payable by Buyers in respect of the Lots that is detailed on Our Website and/or in the relevant Catalogue;
“Catalogue” means Our catalogue detailing Lots being sold by a Vendor;
“Contract” means a contract between a Buyer and Vendor for the purchase of a Lot;
"The Conditions of Sale" are collectively these Terms and Conditions of Sale and any Special Conditions.
"Heritable Property" means heritable (real) property located in Scotland;
“Lots” means those items being offered for sale by Vendors to Buyers and in the case of Heritable Property is the property which is the subject of the sale and is described in the relevant particulars and/or Special Conditions and in the Articles of Roup or any part thereof which is being offered for sale;
"The Minute of Preference and Enactment" is contained in the Articles of Roup and will be completed following the auction of the Lot.
“Offline Auction” means an auction for the purchase of a Lot which is not an Online Auction;
“Online Auction” means an auction for the purchase of a Lot which is conducted on Our Website;
“Our Website” means www.sweeney-kincaid.com;
"Particulars" means the particulars relating to the Lot and are contained in the Catalogue relating to the Auction at which it is proposed to offer the Lot for sale, or in the case of late entry, they are available (separate from the Catalogue) on Our Website immediately before the Auction.
“Private Treaty Sale” means the Sale of a Lot by negotiation between the Vendor and the Buyer which is not a Tender Sale, Online Auction of Offline Auction;
“Sale” means the sale of a Lot by a Vendor to a Buyer whether by Online Auction, Offline Auction, Private Treaty or Tender;
“Special Conditions” means any special conditions relating to a Sale which are contained on Our Website or in the relevant Catalogue and in the case of Heritable Property are contained in (or their whereabouts are described in) the Articles of Roup or are available on Our Website, immediately before the Auction;
“Tender Sale” means the Sale of a Lot by way of a tender process with a fixed closing date (subject to these terms and conditions);
"Terms and Conditions" means this document including all schedules annexed hereto);
“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any tax similar or equivalent to value added tax or performing a similar fiscal function;
“Vendor” means the party who sells a Lot, and in the case of Heritable Property is defined in the individual Articles of Roup, and the term includes the individual Auctioneer representing the Auctioneers and who is responsible for the conduct of the Auction;
“We/Us/Our/the Auctioneers” means Sweeney Kincaid Limited, details of which are below in clause 3; and
“You/Your” means a party who Bids on or buys a Lot.
The singular is deemed to include the plural (and vice versa) and the masculine is deemed to include the feminine (and vice versa).
All obligations, agreements or warranties given by or on behalf of the Buyer pursuant to the Particulars or The Conditions of Sale shall, where such party consists of two or more persons, be deemed to be joint or several.
The undermentioned headings do not form part of The Conditions of Sale and are only to assist ease of reference. The relevant subject matter may also be dealt with under headings apparently relating to different topics.
3. INFORMATION ABOUT US
Sweeney Kincaid Limited is a company registered in Scotland under company number SC196511 and with Our registered office at 250 Carnegie Road, Hillington Park, Glasgow, G52 4NA. Our main trading address is 250 Carnegie Road, Hillington Park, Glasgow, G52 4NA, and We operate Our Website.
4. SERVICE AVAILABILITY
We reserve the right at all times to refuse Bids from, or restrict bidding, from certain countries, organisations, corporate entities, or individuals, and to deny or restrict access to Our Website.
5. OUR STATUS AND YOUR STATUS
5.1 Please note that we offer Lots for sale and conclude Contracts as agents on behalf of Vendors. The resulting legal contract is between the Buyer and Vendor and We are not responsible for any action or default on the part of the Vendor or Buyer.
5.2 If You Bid for a Lot You warrant that you are legally capable of entering into binding contracts and (if an individual) you are at least 18 years old.
5.3 You are deemed to be bidding on Lots as a principal on Your own behalf, unless We expressly acknowledge in writing that You are acting as the agent for another party. If We do so acknowledge that You are acting as an agent for a principal then You warrant to Us that You have the requisite power and authority to conclude Contracts on behalf of that principal.
6. CONDUCT OF SALES AND FORMATION OF CONTRACTS
Formation of Contract
6.1 Bids constitute only an offer to buy a Lot from the Vendor subject to these terms and conditions and any applicable Special Conditions. All Bids are strictly subject to acceptance by Us and if We accept Your Bid on behalf of the Vendor We will confirm such acceptance to You by issuing an invoice to you. For a Lot of Heritable Property, see clause 6.3.
6.2 The Contract between You and the Vendor will only be formed when we confirm Our acceptance by sending You the relevant invoice, whether or not Our Website states that an Auction is “closed” or that a Lot has been “sold”, and whether or not Our Website states that Your Bid is the current leading bid. For a Lot of Heritable Property, see clause 6.3.
6.3 The highest bidder for the Lot at the Auction comprising Heritable Property shall be the Buyer. On the Lot being knocked down, the successful bidder must forthwith pay the deposit referred to in clause 10.1 and complete and sign the Minute of Preference and Enactment, and return this to the Auctioneer within 72 hours of the Auction concluding and such bidder shall become bound and obliged for the sum offered by him. If the successful bidder acted as an Agent, he must give the Auctioneers' Clerk the details of the principal at the time of completing and signing the Minute of Preference and Enactment. In default, We shall be entirely at liberty to re-submit the Lot for sale at any time without consulting or giving notice to the earlier successful bidder or his principal. THE AUCTIONEER MAY, IN THE ALTERNATIVE, SIGN THE MINUTE OF PREFERENCE AND ENACTMENT ON BEHALF OF THE BUYER ONCE THE SAID DEPOSIT HAS BEEN PAID, THUS BINDING THE BUYER. THE BUYER EXPRESSLY CONSENTS TO THIS.
Suspension of Auctions
6.4 We reserve the right to suspend an Auction at any time. No Contract is formed between You and the Vendor until we issue an invoice to You. If an Auction is suspended then no Contract shall exist between You and the Vendor whether or not Our Website states or stated that the Auction had “closed” or a Lot had been “sold”.
Acceptance of Bids
6.5 We and the Vendor or Offeror reserve the right to refuse any Bid and shall be under no obligation to accept the highest Bid for a Lot, and will be entitled to accept the whole or any part of any Bid.
6.6 All Bids for Lots being sold in an Online Auction must be made via Our Website (unless we specifically permit otherwise in writing). Your Bid constitutes an offer to buy a Lot from the Vendor subject to these terms and conditions and any applicable Special Conditions. All Bids are subject to acceptance and if We accept Your Bid on behalf of the Vendor We will confirm such acceptance to You by issuing an invoice to you. The Contract between You and the Vendor will only be formed when we send You this invoice.
6.7 We may authorise you at Our discretion to use Autobids and You are not entitled to do so until you have such authorisation
6.8 All Autobids must exceed any relevant minimum bid increment and otherwise be made in accordance with the guidance contained on Our Website.
6.9 When Lots are sold by way of an Offline Auction the highest Bidder at the fall of the hammer shall be the buyer of that Lot should their Bid be accepted by Us. We reserve the right to refuse any Bid without giving a reason for this. All Bids constitute offers to purchase Lots from the Vendor subject to these terms and conditions and the Special Conditions and no Contract shall exist until such Bids are accepted by Us.
6.10 Bids for Lots offered for sale by way of a Tender Sale must be made by submitting a Tender Form available in the Catalogue, or via Our Website.
6.11 Tender Sales will specify a closing date and time (“the Closing Time”) by which Bids should be made. Please note that We reserve the right at all times to:
6.11.1 consider or accept Bids on behalf of Vendors prior to the specified Closing Time; and
6.11.2 alter, shorten or extend any Closing Time, and inform any potential Bidders that we are considering a Bid or Bids in respect of a Lot, up until a new closing time;
and we shall endeavour to inform all potential Bidders in the event that a Closing Time is being changed.
6.12 No Contract shall be formed in respect of a Tender Sale until we confirm the acceptance of Your Bid to You in writing by issuing the relevant invoice.
Private Treaty Sales
6.13 Private Treaty Sales shall be conducted in accordance with these terms and conditions as altered by any relevant Special Conditions and/or other conditions specified by the Vendor, and no Contract shall be formed in respect of Private Treaty Sales until we confirm this to You in writing by issuing the relevant invoice.
6.14 All Bids are subject to payment of the relevant Buyer’s Premium unless specified otherwise in the Special Conditions.
6.15 We reserve the right of admission to all Auctions and Sales including admission to any sale room or premises, or via Our Website, and the conduct of Sales shall be at Our sole discretion.
6.16 Buyers in attendance at Offline Auctions will be asked to register their name and address and will be handed a “Buyers Bidder Number” under which to Bid for Lots. Buyers who Bid for Lots on Our Website will be identified by the User ID they have used to log in to Our Website.
6.17 Bids may not be withdrawn notwithstanding any statement on Our Website including but not limited to a statement that an Auction has closed or that a reserve price has not been met. All bids shall remain valid at least until 24 hours after the time that an Auction closes.
6.18 We and the Vendor reserve the right to fix or alter a reserve purchase price on any Lot at any time before the Contract is formed, and either before, during, or after the relevant Auction, and may withdraw consolidate or divide any Lot at any time.
6.19 If Your Bid is detailed on Our Website as being the current leading bid this does not guarantee that it meets the reserve price which has been or may subsequently be set in relation to the Lot.
6.20 Bids must meet any relevant minimum bid increase.
6.21 The Vendors may Bid for any Lot themselves or through Us, or by another agent approved by Us.
6.22 We reserve the right to accept commissioned Bids to purchase Lots on behalf of Bidders, providing such commissioned Bids are given in the appropriate written or electronic form, and are accepted by Us. To commission Bids You should complete the tear-out proforma included at the back of the relevant Catalogue, or complete the online form on Our Website where available, indicating the maximum price You would be prepared to Bid for each of the Lots You would like to buy, or in the case of non auction sales, Your Bid amount. Provided we accept Your commissioned Bid we will then Bid on Your behalf. We are not responsible for any instructions to purchase Lots given to sale porters.
6.23 You may inspect Lots only at the times and at the premises specified on Our Website, in the relevant Catalogue, or otherwise specified by Us, and to satisfy yourself on all matters affecting the Lots before Bidding.
6.24 When inspecting Lots You must not damage, dismantle or move them or plug any equipment in to electric supply outlets.
6.25 Without prejudice to the foregoing, We may refuse any Bid (or Autobid) and may restrict the maximum Bid (or Autobid) that You may make having regard, inter alia, to the quantum of any deposit which You may have made pursuant to clause 10.
6.26 Where a reserve price is shown in respect of any Lot, We may reduce, or remove, any reserve price during the course of, or within 24 hours of the closing of, any Auction. For the avoidance of doubt, any indication in respect of a Lot that a reserve has not been met is not conclusive until 24 hours after the time at which an Auction in respect of a Lot has closed.
7. YOUR USE OF OUR WEBSITE
7.1 We may provide links on Our Website to the websites of other companies, whether affiliated with Us or not. We do not give any undertaking or warranty in relation to the content of such websites.
7.2 No part of Our Website may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without Our prior written permission.
7.3 While We endeavour to ensure that Our Website is normally available 24 hours a day, We shall not be liable if for any reason it is unavailable at any time or for any period.
7.4 Access to Our Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Our control.
7.5 While We try to ensure that the information on Our Website is correct, We do not warrant its accuracy and completeness. We do not provide any guarantee that the information contained on Our Website in relation to the status of Auctions or Lots is accurate, including but not limited to information regarding Auctions being “closed” or “suspended” or Lots being “sold”, or Bids being the current leading bid.
7.6 We may make changes to the material on Our Website at any time without notice.
7.7 In order to use Our Website to make Bids You must create an account with a registered User ID and password. You are responsible for activity undertaken under that User ID and password and must ensure that you keep these safe and do not allow any other person access to them.
8. COLLECTION, HANDLING AND CONDITION OF LOTS
8.1 Unless specified otherwise in the Special Conditions:
8.1.1 Buyers will be responsible for collection and removal of Lots purchased by them and must provide their own labour and equipment to effect such removal. Removal of Lots is at the Buyer’s expense and risk;
8.1.2 No Lot or part thereof can be removed until payment is made in full for it, together with payment of all other amounts due from You to us or the Vendor (and for the avoidance of doubt where any part of the payment is made by cheque this cheque must clear to Our satisfaction prior to removal of the relevant Lot);
8.1.3 No Lot shall be cleared without Our authority, and no Lot shall be cleared unless We or Our employees or agents are present; and
8.1.4 Removal of Lots shall take place only up to 5pm on the day of the relevant Sale and must be completed by 5pm on the day following the close of the Sale (and in every case time shall be of the essence).
8.2 We may at Our discretion require the payment of a deposit prior to and/or during the removal of any Lots, which will be refunded on such removal being completed to Our satisfaction. If the Buyer refuses to deposit such monies, we or the Vendor may refuse the Buyer access to the relevant premises for the purposes of removing the Lot and/or to rescind the Sale without penalty.
8.3 All equipment used for lifting and transporting heavy items which have been purchased, including but not limited to fork lift trucks and other lifting devices, shall be fit for their purpose and for safe operation and covered by appropriate insurance and registration documents. This documentation may be required by Us or the Vendor for inspection and we may refuse permission for the Buyer to use any such devices which we consider not to comply with the foregoing requirements.
8.4 The Buyer hereby indemnifies us and the Vendor against and will make good any injury or damage to persons or property caused by it when handling Lots, and shall insure against this obligation and indemnity.
8.5 The Buyer shall have no right to anything not described on Our Website or in the relevant Catalogue.
8.6 In exceptional circumstances we may agree to deliver Lots to You or store Lots bought by You in which case the following conditions shall apply, unless we agree otherwise in writing:
8.6.1 Delivery of the Lots shall take place at Our place of business;
8.6.2 The Lots shall be at Buyer’s risk from the time the Sale ends;
8.6.3 You shall take delivery of the Lots within 2 days of Us giving notice that the Lots are ready for delivery;
8.6.4 Any dates specified by Us for delivery of the Lots to You are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time;
8.6.5 Subject to the other provisions of these conditions We shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Lots (even if caused by Our negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days;
8.6.6 We may store the Lots until delivery, and the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
8.6.7 The Buyer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for taking delivery of the Lots.
8.7 Appropriate protective clothing, such as hard hats and safety shoes, must be worn during any removal or transportation activities involving Lots and due regard paid to relevant handling practices, laws regulations and codes of practice as well as any of the Vendor’s or Our safety stipulations.
8.8 All electrical equipment and electrical supplies must be left in a safe condition during and after the removal of Lots and the use of explosives, flame cutting equipment or any other potentially hazardous or inflammatory process, shall not be permissible on the site without Our express written consent.
8.9 It is expressly brought to Your attention that, at the time of sale, any item of plant, machinery or equipment contained in the Lot(s) may not necessarily comply with relevant Health and Safety or any other legislation governing the use of that plant, machinery or equipment, and no warranty is given that any Lots will so comply. From the conclusion of the relevant Contract it is the Buyer’s responsibility to ensure that such Lots will be safe and that their use does not contravene any legislation.
8.10 Certain items included in Lot(s) could contain blue and white asbestos, dangerous chemicals, or other substances which if not handled correctly during their removal from the site could result in a breach of Health and Safety legislation or other relevant legislation. It is the Buyers responsibility to comply with this legislation from conclusion of the relevant Contract.
8.11 Neither We nor the Vendor represents that any Lot sold which comprises furniture or furnishings subject to the Furniture and Furnishings (Fire & Safety) Regulations 1998, or similar legislation, are in a condition which makes them suitable for domestic use. Prior to supplying such Lots for domestic use the Buyer must therefore ensure that they comply with the requirements of such laws and regulations.
8.12 Buyers must ensure that any motor vehicles forming part of the Lots comply with all relevant Laws and Regulations and have all necessary permits, certificates and authorisations before being used and neither We nor the Vendor warrant the accuracy of any recorded mileage on any motor vehicle forming part of the Lots.
8.13 The Buyer undertakes not to disclose or make available to any third party any unlicensed software loaded on any computer equipment forming part of Lots, or any part thereof. The Buyer further undertakes to erase any such unlicensed software at the earliest opportunity, and indemnifies Us and the Vendor from any liabilities arising out of the use of any unlicensed software loaded on any hard disc equipment forming part of Lots.
8.14 Neither We nor the Vendor make any warranty whatsoever in relation to computer hardware, software and/or equipment, all of which is bought at the Buyer’s own risk.
9. RISK AND TITLE
9.1 Title to the Lots shall only pass to the Buyer upon the latter of full payment for such Lot together with any other sums due from the Buyer to Us of the Vendor, and removal of the Lot in accordance with these terms and conditions, and anyone purporting to sell Lots before having title to do so in accordance with these terms and conditions, will be deemed to hold and shall hold the sale proceeds on trust as agent for Us and the Vendor.
9.2 The Lots will be at the Buyer’s risk from the time the relevant Sale ends and the Buyer shall effect insurance for these risks at once. In no circumstances will We or the Vendor be held responsible if any Lot or part thereof is stolen damaged or destroyed after the Sale ends.
9.3 The Vendor shall only sell such title to the Lots as it may have.
9.4 Prior to clearance of any Lots We or the Vendor may rescind the Contract for the sale of that Lot should any third party claim title to or possession of any part of the Lot.
9.5 If at any time We or the Vendor establish that a Lot is subject to a charge, lien, retention of title claim or other encumbrance or that the Vendor does not have an unencumbered title thereto then either We or the Vendor may give notice in writing that the Lot is to be excluded from the relevant Sale. In this case the Buyer shall be deemed to have waived and relinquished such title as it may have acquired to such Lot and this shall not be a ground for rescinding, avoiding or varying any or all of the provisions hereof or, for recovery of any or all of the purchase price paid by the Buyer.
9.6 If the title of the Vendor to any Lot or part thereof which is transferred to the Buyer is called in to question by any third party, or if there is a dispute in relation to these Terms and Conditions, the Buyer will allow the Vendor access to the Lot(s) in question during normal business hours for the purpose of resolving such question.
9.7 If any Lots are excluded from these Terms and Conditions in accordance with Clause 9.5, the Buyer undertakes with Us and the Vendor to:-
9.7.1 deliver at its own expense the Lots on being requested to do so by Us or the Vendor to such place as we shall require; or
9.7.2 repay us or the Vendor upon demand such amount as is agreed between the Vendor and the owner of the relevant Lot or party having a claim thereto, as represents the sum recoverable from the Vendor by reason of the Buyer’s failure to deliver the Lot in accordance with sub-clause 9.7.1.
10. PRICE AND PAYMENT
10.1 Upon request by Us, and always where the Lot is Heritable Property , You must pay a deposit of 10% (Ten per centum) (or such other percentage as We may agree with You) of any Bid made by You to ensure its acceptance as a valid Bid by Us. In the case of Heritable Property, the deposit must be a minimum of THREE THOUSAND POUNDS (£ 3,000). Such deposit shall be held by us in our client account on Your behalf until whichever is the earlier of (a) Your requesting its return; and (b) Your having successfully bid for a Lot. On the occurrence of (b) the deposit shall be held by Us to account of the Vendor unless the Lot is Heritable Property when it will be passed to the Vendor’s solicitor to be held by them on behalf of the Vendor.
10.2 Unless specified otherwise in the Special Conditions payment for the Lots, together with any other sums payable to Us or the Vendor by the Buyer, must be made in full in such form as We may specify by 4pm on the day following the end of the Auction or Sale, and in any case before clearance of the relevant Lots.
10.3 In relation to a Lot of Heritable Property, the Auctioneers reserve the right to hold the Minute of Preference and Enactment, signed by the Auctioneers on behalf of the Buyer, until the cheque tendered by the Buyer in respect of the deposit has been cleared and/or until the full deposit has been received by the Auctioneers.
10.4 We and the Vendor reserve the right to extend the period a Buyer has to make payment for any Lots or other sums due to Us or the vendor, and in this event will be entitled to charge interest in accordance with Clause 10.10.
10.5 Cheques for an amount higher than a cheque card limit will only be accepted if accompanied by a letter from Your bank stating that the cheque will be honoured.
10.6 All prices specified by Us exclude VAT which shall be payable in addition.
10.7 Where invoices or parts thereof are zero rated for VAT because Lots are to be exported from the United Kingdom, you indemnify us and the Vendor in respect of any VAT which is or may become payable in respect of those Lots and We and the Vendor shall be entitled to charge You such amount of VAT in respect of those Lots which amount shall be payable immediately by You. We and/or the Vendor may ask You to provide evidence that Lots are being exported and shall determine whether such evidence is acceptable.
10.8 VAT is payable on the Buyer’s Premium which is deemed to be a service rendered in the UK and as such not exportable.
10.9 Time is of the essence for all payments due by You under these terms and conditions.
10.10 Notwithstanding Our or the Vendor’s right to rescind from any Sale in the event of late payment, interest will be payable on monies paid by the Buyer after the relevant due date at a rate of 8% above the then base lending rate of The Royal Bank of Scotland plc.
10.11 No sale shall be valid in the event that any payment medium tendered by you shall not be honoured by a bank or other financial entity or shall be the subject of any chargeback or reversal of any payment for any reason whatsoever. In such circumstances, not only shall We proceed to sell the Lot to another purchaser, but You shall be liable to reimburse us, without limit, of all costs charges and expenses incurred by us and in addition the amount of any shortfall between the price at which you had offered to purchase the Lot and any price ultimately achieved.
11. EVENTS OF DEFAULT AND RESCISSION OF CONTRACT
11.1 We and the Vendor will be entitled to rescind any Contract where:-
11.1.1 payment of the purchase price or deposit for any Lot, or any other sum payable by the Buyer to Us or the Vendor, is not paid in accordance with these terms and conditions;
11.1.2 removal of any Lot is not made in accordance with these terms and conditions;
11.1.3 You breach any other of these terms and conditions;
11.1.4 You become insolvent or bankrupt or make any arrangement or composition with Your creditors, or shall have a receiver appointed over all or any part of Your assets, or if You take any similar action in consequence of debt; or
11.1.5 Any third party has title to or the right possession of any of the Lots .
11.2 Upon rescission of a Contract by Us or the Vendor the following provisions apply:-
11.2.1 if the Lots have been cleared either We and/or the Vendor, or Our employees or agents may enter Your premises of the Buyer to recover such Lots;
11.2.2 Lots may be re-sold or otherwise disposed of by Us or the Vendor in the manner we feel appropriate and at Our sole discretion;
11.2.3 any shortfall between the price realised for the said Lot(s) upon resale and the price originally sold for to a defaulting Buyer, together with the expenses incurred in effecting such resale and any other costs resulting from the Buyer’s default, shall be due as a debt from the defaulting Buyer. Neither We nor the Vendor shall be liable to account to a defaulting Buyer in the event of a resale at a higher price than the price originally due from a defaulting Buyer; and
11.2.4 the defaulting Buyer will be responsible for all losses and expenses incurred by Us and/or the Vendor resulting from the default, including storage, security and removal expenses, the costs of re-selling or disposing of lots and auctioneers’ commission.
CLAUSES 12 - 20 RELATE SOLELY TO LOTS WHICH COMPRISE HERITABLE PROPERTY
12. TENURE AND INTEREST
12.1 The tenure of the Lot or interest sold is as stated in the Particulars and/or Special Conditions.
12.2 The title will be taken as it stands and the Buyer will be taken bound to have satisfied himself as to the validity and sufficiency of the title and the burdens and conditions affecting same and of the Vendor's right to the Lot and its power to sell same.
12.3 The Lot is sold under burden of any servitudes and rights of wayleave and any other third party rights, real or personal, and whether or not expressed in the title deeds and howsoever created.
12.4 The Buyer shall free and relieve the Vendor or all obligations incumbent upon the Vendor to uphold and maintain any items of common property and any fences, drains, ditches, water supplies or other works within or connected with the Lot.
12.5 Minerals will be conveyed only in so far as the Vendor has right thereto and no coal mining or other minerals report will be exhibited or delivered.
12.6 The Buyer shall be deemed to have made all necessary enquiries in connection with the planning position, the status of roads, footpaths and main drains, and generally all such other matters as are normally covered by Local Authority Searches and Property Enquiry Certificates and the Vendor will not require to produce any such Certificates or Searches.
12.7 No warranty is given as to the compliance by any occupants of the Lot with legislation whether delegated or otherwise or as to the fitness of the Lot for any use or purpose. All bidders shall be held to have satisfied themselves before bidding as to whether the Lot or any property in the vicinity of the Lot constitutes contaminated land as defined in Section 78(2) of the Environmental Protection Act 1990 or as subsequently amended or any regulations made thereunder.
12.8 No searches in the Land Register, General register of Sasines, or other registers maintained by the Registers of Scotland or otherwise or the Charges Register or Company Files of the Vendor or any predecessors in title will be exhibited or delivered, nor will any letters of non-crystallisation of floating charges granted by the Vendor or any predecessors in title, and no letter of obligation shall be granted by the Vendor's solicitors.
12.9 The Vendor will be responsible for the discharge of any Standard Securities recorded or registered in respect of the Lot. Where any Lot is being sold by the Vendor as heritable creditor in possession, the Vendor will not be under any obligation to deliver (a) a discharge of the Standard Security in favour of the Vendor, (b) a discharge of any pari passu or postponed Standard Securities or charges, or (c) a discharge of any Inhibitions registered against the granter of the said Standard Security in favour of the Vendor as heritable creditor and dated after the date of recording or registration of the Standard Security.
12.10 Any plan which the Buyer may wish to incorporate in his title to the Lot or annex to the Disposition by the Vendor or which be required by the Keeper of the Registers of Scotland shall be prepared at the sole expense of the Buyer and shall not be warranted by the Vendor.
12.11 The Vendor's solicitors will be under no obligation to exhibit or deliver any evidence, including Consents, Affidavits or Renunciations, required under or by virtue of the terms of the Matrimonial Homes (Family Protection) Act 1981, as amended, or the Civil Partnerships Act 2004, except in regard to the Vendor's position.
12.12 The Lot is exposed for sale not according to the advertisement or catalogue thereof or with reference to any information, plans or documentations which may be communicated to the Purchaser before or at the said public roup but tantum et tale as it exists and as the Vendor has right thereto and no warranty is given as to descriptions, extents, boundaries, advertisements, accommodation, rentals, rateable value, feuduties, ground annuals or other payments, the allocation or unallocation thereof, leases, burdens, servitudes, building warrants, certificates of completion, planning or any orders, regulations or notices made or issued by any authority or any particulars, plats or information given by the Vendor or its agents or any farther matter or thing of any kind whatever but the Buyer admits that the Buyer has enquired and satisfied himself on all matters or otherwise he takes all risks. The whole titles will be made available (either physically or online at the absolute discretion of the Vendor) prior to the Auction on request, but only insofar as within the possession of the Vendor. If any misstatement, error or omission shall be found as regards the Lot in any manner of way whatsoever the same shall not annul the purchase or entitle the Buyer to be relieved thereof nor to claim any deduction or abatement from the price offered by the Buyer or to retain the same or any part thereof.
12.13 Where a Sale induces registration in the Land Register of Scotland, the Buyer shall be bound to accept any exclusion of indemnity made by the Keeper of the Registers of Scotland.
The Buyer shall be deemed to purchase the Lot with full notice in every respect regarding the actual use made of the Lot, and the Buyer or any prospective mortgagee shall raise no requisition or objection thereto and the Buyer shall take the Lot, subject to the said use, and nothing in the Particulars or the Conditions of Sale and nothing communicated by or on behalf of the Auctioneers shall be deemed to make a representation or warranty by the Vendor that such use is or will become or will continue to be permitted use within the provisions of the Planning Acts or any Rules or Regulations made or arising thereunder.
14. ENQUIRIES REGARDING PLANNING AND ASSOCIATED MATTERS
Notwithstanding anything in these Terms and Conditions, or in the Particulars, no representation, warranty or condition whether collateral or direct or indirect has been made or shall be made or implied (however arising) on behalf of the Vendor or the Offeror either as to the state or condition of the Lot or any part thereof or as to whether the same is subject to any schemes, resolutions, development orders, improvement notices, repairs notices, or any proposals under the Housing Acts or other legislation or regulations or any of them or as to whether the Lot is in an area for which re-development (in whole or in part) is proposed or is subject to road widening proposals or schemes or other matters. The Buyer shall be deemed to purchase in all respects subject to all such matters whether or not any relevant enquiry is made by or on behalf of the Buyer and neither the Vendor nor the Auctioneer shall be required or obliged to inform the Buyer of all or any such matters, whether known to the Vendor or Auctioneers, and the Buyer shall raise no enquiry, requisition or objection regarding all or any such matters and neither the Vendor nor the Auctioneers shall be liable in any way with regard to all or any such matters or for failure to disclose the same, it being the sole responsibility of the Buyer to satisfy himself in respect of all such matters.
15. TITLE TRANSFER
15.1 On the Date of Entry and in exchange for payment of the whole purchase price and interest thereon (if any) the Vendor shall deliver to the Buyer (i) a duly executed Disposition or Assignation of the Lot in favour of the Buyer and under the reservations, burdens, conditions and others referred to in the title deeds of the Lot or otherwise affecting the same; and (ii) any occupancy, tenancy or lease documentation relating to the Lot insofar as within the possession of the Vendor. No warrandice shall be granted in said Disposition. The Vendor shall neither be required to convey, transfer or assign the whole or any part of the Lot to any person or body other than the Buyer nor shall the Vendor be required to execute a Disposition or Assignation other than of the whole of the Lot nor at a price different from that stated in a Minute of Preference and Enactment.
15.2 Notwithstanding the delivery of the Disposition or any Assignation in favour of the Buyer, these Terms and Conditions, any Special Conditions of Sale, the Articles of Roup and the Minute of Preference and Enactment to follow thereon will form a continuing and enforceable contract, except in so far as fully implemented thereby, but the contract shall cease to be enforceable after a period of three (3) months from the date of entry. In any case which a memorandum of sale is signed in place of a Minute of Preference and Enactment and Articles of Roup then the Buyer is responsible to ensure that the sale proceeds under the principles of these terms and conditions and that the deposit is paid as such and an offer is submitted immediately to the Vendor’s solicitor without condition utilising these terms & conditions. Should any contracts be incorrectly executed and there be a discrepancy or disagreement on the terms, prices and parties of the contract then referral will be made to the Auctioneer’s auction notes and any applicable evidence. Failure of a Vendor to produce a home report or Energy Performance Certificate (“EPC”) when required does not constitute breach of contract on behalf of the Vendor. The Vendor has a duty to produce a home report as specified by law and interpreted by the Vendor. The Auctioneers will make all attempts to ensure necessary documentation is requested when required but may not be held liable for the Vendor’s actions who are ultimately responsible for the cost and production of the home report and EPC.
15.3 The Buyer shall be responsible for delivering to the Vendor for execution a disposition in respect of the Lot in such a form as to be in conformity with these Terms and Conditions, any Special Conditions of Sale, the Articles of Roup and the Minute of Preference and Enactment sufficiently before the Date of Entry to enable immediate execution. Any failure so to do shall not excuse the Buyer of its obligation to make payment of the balance of the purchase price on the Date of Entry specified in the Special Conditions.
16. DATE OF ENTRY
16.1 The Date of Entry when the balance of the purchase price shall be paid, shall take place on the date specified in the Special Conditions, or if not specified, 21 days from the date of the Auction or such earlier date as may be agreed between the Vendor and the Buyer. If the balance of the price has not been paid by 3pm on the specified date (for any reason other than the Vendor's neglect or default), the Vendor's Solicitors shall be entitled to refuse to settle the transaction on that day or (as a condition of completing after 3pm on that specified date) to require that the next working day shall be deemed to be the Date of Entry for the purpose of calculating interest and apportionments of income and outgoings.
16.2 The purchase price will be exclusive of VAT. Should VAT be chargeable on the sale of the Lot, or any part thereof, the Buyer will pay such VAT in addition to the purchase price.
16.3 For the avoidance of doubt, payment of the balance of the price on the Date of Entry is an essential condition of the Contract. Consignation of the purchase price in a bank or in joint names will not be competent.
16.4 Payment of the balance of the price in full by CHAPS or similar bank transfer system by 3pm on the Date of Entry is an essential condition of the contract. Should the full price not be paid by 3pm on the Date of Entry the Vendor shall have the right to obtain from the Buyer interest at the rate of eight per centum (8%) per annum above The Royal Bank of Scotland plc base rate on the whole price notwithstanding that the Buyer may not have taken entry, to run (i) until full payment of the purchase price is made or (ii) in the event of the Vendor exercising its option as aftermentioned to rescind the Contract, until such time as the Vendor shall have completed a re sale of the Lot and received the re-sale price, and further, interest shall run on any shortfall between the purchase price under the contract and the re-sale price until such time as the shortfall has been paid to the Vendor. The Vendor shall have the sole right to refuse the Buyer entry to the Heritable Property in the event of the Buyer wishing to take entry without paying the price in full. If the balance of the purchase price with accrued interest is not paid in full within seven (7) days of the Date of Entry, the Vendor shall be entitled, but not bound, to treat the Buyer as being in material breach of contract and to rescind the Contract on giving seven (7) days prior written notice to that effect to the Buyer, and in such circumstances, the Buyer's deposit will be held to be forfeit without prejudice to any rights or claims competent to the Vendor arising from the breach of contract by the Buyer, including the Vendor's right to claim all losses, damages and expenses (including without prejudice to the foregoing the cost of re-advertising and any loss on sale, the cost of funding, and any loss of income, and expenses incurred) sustained as a result of the Buyer's breach of contract. In the event of rescission by the Vendor, no interest shall be due on the balance of the purchase price as calculated in accordance with this clause.
17.1 If any income or outgoing shall require apportionment and for any reason the apportionment has not been finalised on or before the Date of Entry, the relevant condition of sale will remain in full force and effect notwithstanding the settlement of the transaction until the apportionment has been finalised.
17.2 Without prejudice to clause 17.1, where any income or outgoing required apportionment but the apportionment has not been finalised at the settlement of the transaction, then if reasonable estimated figures are available such income or outgoing shall be provisionally apportioned based on these figures, subject to adjustment upon final apportionment when the actual figures have been determined.
17.3 income and outgoings shall be apportioned on the basis of payments actually made, not just payable, as at the Date of Entry, but without prejudice to the right of the Vendor, as the party entitled to any income referable to the period prior to the Date of Entry, to pursue the relevant debtor after the Date of Entry for payment of any arrears.
The Buyer shall take the Lot subject to and shall be responsible for compliance with all notices and/or requirements relating to the same whether such notices and/or requirements have been made by the Local Authority or Landlord or any other person or body; as between the Landlord and Tenant, they are the liability of the Landlord or of the Tenant and whether the same be served or intimated before or after the date of the Contract. The Buyer shall be responsible for complying with any Schedule of Dilapidations which may be served before or after the date of the Contract. The Buyer shall not make any requisition or objection in regard to any of the above matters and the Buyer shall indemnify the Vendor in respect of any claims which have arisen or which may arise in regard thereto. The Buyer shall take the Lot as it stands as to condition, repair and use immediately prior to making of the said contract. Without prejudice to the foregoing provisions, the Buyer accepts full liability and responsibility for the cost of implementing any outstanding statutory notice issued by the Local Authority or by any other body.
19. OBLIGATIONS, RESTRICTIONS, TENANCY AGREEMENTS etc.
If the Lot shall be sold subject to any lease, covenant, restriction or other matter referred to in the Special Conditions, then unless otherwise provided in the Special Conditions, the details of such matter or matters may be inspected at the office of the Vendor's Solicitors (named in the Special Conditions) during normal office hours by appointment, and the Buyer shall be deemed to purchase with full knowledge of all such matters whether or not he shall have availed himself of the opportunity to make such inspection before the Auction, and the Buyer shall raise no objection, enquiry or requisition thereon notwithstanding any partial, incomplete or inaccurate statement thereof in the Particulars or the Special Conditions.
No representation is made that the rent payable in respect of the Lot or any part thereof, sold subject to a tenancy, is that properly charged or recoverable under any current statute for the time being in force regulating the control of rents or that the Vendor would have been entitled to obtain possession at the time when any notice increasing rent under the said legislation becomes operative, apart from any provision giving the Tenant security of tenure. The only representation made or intended to be implied by or from the Particulars is that the rent so stated is the rent actually being paid by the Tenant to the Vendor and no objection or requisition shall be made or taken as to any matter arising under the said legislation. The Buyer shall not be entitled to require particulars of a standard rent or the rent limit or of the net rent or of the fair or the present or former regulated rent payable in respect of the Lot or any part thereof, nor to the provision of copies of statutory notices of increases of rent and Notices to Quit (if any) which have been served. The Buyer shall not raise any objection that the Lot or any part thereof has not at any time been registered with the relevant Local Authority as decontrolled and the Buyer shall not require any Particulars, which under the said legislation are to be inserted in the Tenant rent book, to be so inserted or requirement to be supplied with any particulars for insertion. In the case of a regulated tenancy, no objection, requisition or enquiry shall be made on the ground that the rent is not the fair rent or that the same may exceed the registered rent under the said legislation or that the same (if applicable) has not been registered. No objection shall be taken by the Buyer as to whether or not a notice of increase of rent has or has not been validly served or as to whether or not a Certificate of Disrepair has been obtained by the Tenant authorising reduction of rent, nor shall the Buyer object to or claim damages or compensation or rescission on the ground that the Vendor has not complied with the terms of any counter notice served upon or by a Tenant. Neither the Vendor not the Auctioneers shall be under any duty to acquaint the Buyer of any such matters, whether or not the same are known to the Vendor or the Auctioneers, and the Buyer shall, in all respects, satisfy himself at his own risk and whether or not he does so, no claim shall be made against or entertained by the Vendor or the Auctioneers alleging that the Buyer should have been informed of such matters.
21. SUB-TENANCIES etc.
Whether the Lot is sold subject to any tenancy or tenancies nothing shall be incorporated in the Sale, either collaterally or directly or indirectly whether by way of condition, warranty or representation, as to whether there are subsisting any sub-tenancies or similar such occupation. Whether or not any such shall be disclosed at or before the Auction, the Buyer shall be deemed to have purchased with the full knowledge of any such tenancy or sub-tenancies or occupations that there may be, whether or not he shall have enquired with the Auctioneers, or have inspected the Lot, and no objection shall be taken or requisitions made on account hereof.
22. UTILITIES / SERVICES
The Buyer shall satisfy himself as to the ownership of all services and installations in or under the Lot, such as electrical fittings and wiring (including communications installations) and gas fittings and pipes, as the Vendor may not have title to sell them. Neither the Vendor nor the Auctioneers accept any responsibility for the service installations and they do not accept liability for any arrears relating to hire charges and similar debts incurred in respect of such service installations.
23. CONTINUATION OF OBLIGATIONS
The Articles of Roup together with the Minute of Preference and Enactment to follow thereon will form a continuing and enforceable contract notwithstanding the delivery of a Disposition except in so far as fully implemented thereby, but the Contract shall cease to be enforceable after a period of three (3) months from the Date of Entry.
24.1 No Lots are sold as new and all Lots are believed to be correctly described and are sold without warranty. Neither We nor the Vendor, nor Our employees or agents makes or gives any representation in relation to any Lot. With the exception of any liability we cannot lawfully exclude, and that liability detailed in clause 24.3 neither We nor the Vendor or Our employees agents or employees shall be liable for any loss or damage suffered as a result of or in connection with any defects or deficiencies in any Lots, errors of description of Lots, any mis-statements as to any matter affecting the Lots or the failure of the Lots to fulfil the functions for which they are intended.
24.2 Our liability for losses You suffer as a result of us breaching these terms and conditions is strictly limited to the purchase price of the Lot You purchased and any losses which are a foreseeable consequence of Us breaching these terms and conditions. Losses are foreseeable where they could be contemplated by You and Us at the time the relevant Contract is concluded.
24.3 Nothing in these terms and conditions shall limit in any way Our liability:
24.3.1 for death or personal injury caused by Our negligence;
24.3.2 under the Consumer Protection Act 1987 or the Sale of Goods Act 1979;
24.3.3 for fraud or fraudulent misrepresentation; or
24.3.4 for any matter for which it would be illegal for us to exclude, or attempt to exclude, Our liability.
24.4 We are not responsible for indirect losses which happen as a side effect of the main loss or damage, including but not limited to:
24.4.1 loss of income or revenue;
24.4.2 loss of business;
24.4.3 loss of profits or contracts;
24.4.4 loss of anticipated savings;
24.4.5 loss of data; or
24.4.6 waste of management or office time however arising, provided that this clause 24.4 shall not prevent claims for loss of or damage to Your tangible property that fall within the terms of clause 24.2 or any other claims for direct financial loss that are not excluded by any of categories 24.4.1- 24.4.6 inclusive of this clause 24.4.
24.5 You hereby indemnify Us and the Vendor, Our employees and agents against any and all losses, damages or expenses suffered as result of Your breach of these terms and conditions, and shall obtain the requisite insurance cover against this indemnity.
25. IMPORT/ EXPORT DUTIES AND CONDITIONS
25.1 If any Lots are exported outside the UK, they may be subject to import duties and taxes which are levied when they reach the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact Your local customs office for further information before Bidding.
25.2 Please also note that You must comply with all applicable laws and regulations both of the UK and of the country for which the Lots are destined, including but not limited to obtaining any licences or permissions required to export the Lots from the UK or import the Lots to the destination country. Neither We nor the Vendor will be liable for any breach by You of any such laws or regulations and You hereby indemnify us and the Vendor against any loss caused by Your failure to abide by them.
26. WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to You should be in writing. When using Our Website, You accept that communication with us will be mainly electronic. We may contact You by e-mail 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 notices given by You to us must be given in writing for the attention of Russell Kincaid, at Sweeney Kincaid Limited, Suite 1.03, The Innovation Centre, 1 Ainslie Road, Hillington G52 4RU and [email protected] We may give notice to You at either the e-mail or postal address You provide to us when registering on Our Website or in any of the ways specified in clause 26. Notice will be deemed received and properly served immediately when posted on Our website, 24 hours after an e-mail is sent, or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
28. TRANSFER OF RIGHTS AND OBLIGATIONS
28.1 Contracts made between You and the Vendor are binding on You and Your respective successors and assignees.
28.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of Your rights or obligations arising under it.
28.3 We or the Vendor may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of Our rights or obligations arising under it, at any time during the term of the Contract.
29. EVENTS OUTSIDE OUR CONTROL
29.1 Neither we nor the Vendor will be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under a Contract that is caused by events outside Our reasonable control (“Force Majeure Event”).
29.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond reasonable control and includes in particular (without limitation) the following:
29.2.1 strikes, lock-outs or other industrial action;
29.2.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
29.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
29.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
29.2.5 impossibility of the use of public or private telecommunications networks including the internet and other computer networks; or
29.2.6 the acts, decrees, legislation, regulations or restrictions of any government.
29.3 Performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and We and the Vendor will have an extension of time for performance for the duration of that period. We will use Our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which Our obligations under the Contract may be performed despite the Force Majeure Event.
30.1 If We fail or the Vendor fails at any time to insist upon strict performance of any of Your obligations under the Contract or any of these terms and conditions, or if We fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve You from compliance with such obligations.
30.2 A waiver by Us or the Vendor of any default by You under these terms and conditions shall not constitute a waiver of any subsequent default.
30.3 No waiver by us or the Vendor 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 accordance with clause 26 above.
If any of these terms and conditions or any provisions of a Contract are 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.
32. ENTIRE AGREEMENT
32.1 These terms and conditions, together with any Special Conditions, represent the entire agreement in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement, whether oral or in writing.
32.2 You acknowledge that, in entering into a Contract, you have not relied on any representation, undertaking or promise except as expressly stated in these terms and conditions.
32.3 All statements made in the Particulars of Sale are made without responsibility on the part of the Auctioneers or Vendor and are statements of opinions and are not to be taken as or implying a statement or representation of fact. Any Buyer shall be deemed to have satisfied himself by inspection or otherwise as to the correctness of each statement contained in the Particulars. Neither the Vendor nor the Auctioneers make or give any representation or warranty in relation to any aspect of the Lot nor have the Auctioneers or any person in the employment of the Auctioneers any authority to do so on the Vendor’s behalf.
33. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
33.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting Our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in Our system's capabilities.
33.2 You will be subject to the policies and terms and conditions in force at the time that You participate in an Auction, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to Contracts previously made by You).
34. LAW AND JURISDICTION
Contracts, including the Articles of Roup and any Minute of Preference and Enactment following thereon will be governed by Scots Law. Any dispute arising from, or related to, such Contracts shall be subject to the non-exclusive jurisdiction of the courts of Scotland, and We and the Vendor reserve the right to bring proceedings against You in any other court or competent jurisdiction.