1 DEFINITIONS (i) In these conditions the following terms have the following meanings unless inconsistent with the context: “Auctioneers” means Brown & Co – Property and Business Consultants LLP, C.R.N. OC302092 whose registered office is at Granta Hall, 6 Finkin Street, Grantham NG31 6QZ; “Host” means Proxibid.com – The host website portal for this auction; “Buyers Premium” means the premium charged to the Purchaser on purchase of Lots; “Conditions” means the standard terms and conditions of business set out in this document; “Lots” means all or any machinery and other items sold or intended to be sold in accordance with these conditions; “Purchaser” means a person, firm or Company who purchase any Lot; “Vendor” means a person, firm or Company who puts forward any Lot intended to be sold at the sale; “Sale” means a sale of the Lots by auction from time to time organized by the auctioneers; “Storage Location” means the venue at which the specific lot is stored during the sale period and is available for viewing (please note Brown & Co staff will not be available to attend viewings); “Sale price” means the price at which a Lot is sold to the winning Purchaser; “Reserve Price” means the minimum price fixed by either the Auctioneers or Vendor at which any Lot is to be sold at the sale; and “Auction Period” means the duration of the timed auction as advertised. Any time periods running from the end of the Auction Period commence at the closing time of the Auction Period. (ii) Except where the context otherwise requires words denoting the singular include the plural and vice versa; words donating one gender includes all genders, words denoting persons include corporations. 2 CONDITIONS OF SALE (i) All persons registered to bid at the Sale in any capacity are deemed to bid on the understanding that they have read and understood these Conditions. (ii) These Conditions may be supplemented or superseded by special conditions applicable to specific Sales, any such special conditions will be noted within the descriptions of specific Lots. (iii) These Conditions, the sale of the Lots and the participation in the auction are on the basis that the Purchaser is acting wholly or mainly within the Purchaser’s trade, business, craft or profession. The Purchaser should immediately notify the Auctioneers if this is not correct. 3 HEALTH AND SAFETY (i) All persons viewing a lot do so at their own risk and with notice of the condition of the premises and their contents. (ii) All persons viewing a lot are hereby made aware that there may be significant risks on the Storage Location including moving machinery and equipment; (iii) Caution should be exercised at all times and children and animals/pets must be fully supervised at all times. (iv) All persons viewing a lot must take notice of all specific health and safety notices on display at individual sites. If in doubt, please consult the Auctioneers in charge. (v) Any accidents or incidents that occur on the Storage Location must be immediately reported to the Auctioneers and the Vendor and details recorded in the appropriate accident books. (vi) No powered machinery or equipment should be started without the prior approval of the Auctioneers or the vendor. (vii) Any vehicles brought onto the Storage Location to collect lots should be operated with extreme caution and within a 5mph speed limit. Loading using machinery should only be undertaken by suitably qualified and experienced operators. (viii) The Auctioneers shall have the right at their discretion to refuse admission to their premises or those of their clients by any person. 4 AUCTIONEERS STATUS (i) The Auctioneers sell as agents for the Vendor except where they are stated wholly or partly to own any Lot as principal. (ii) The parties to the contract of sale are the Vendor and the Purchaser. Auctioneers are not responsible for any default by Vendor or Purchaser. (iii) The Auctioneers includes any employee or agent of the Auctioneers who at the relevant time has the authority to conduct an auction sale. 5 LIMITATION OF LIABILITY (i) This clause 5 sets out the entire financial liability of the Auctioneers (including any liability for the acts or omissions of its respective employees, agents and subcontractors) for: (a) any breach of these Conditions however arising; (b) any use made or resale of the Lots by the Purchaser; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Conditions. (ii) Nothing in these Conditions shall limit or exclude the Auctioneers liability for: (a) death or personal injury resulting from negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability which cannot be excluded or limited by applicable law. (iii) Without prejudice to clause 5(ii), the Auctioneers shall not under any circumstances whatever be liable to the other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: (a) loss of profit; (b) loss of goodwill; (c) loss of business; (d) loss of business opportunity; (e) loss of anticipated saving; or (f) special, indirect or consequential damage, suffered by any other party that arises under or in connection with these Conditions. (iv) Without prejudice to clause 5(ii) or clause 5(iii), the Auctioneers total liability for all other losses arising under or in connection with these Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the Reserve Price. (v) The Purchaser acknowledges that the Vendor has given the Purchaser a reasonable opportunity to inspect the Lots, and the Purchaser has satisfied itself as to the quality and condition of the Lots. 6 WARRANTY DECISIONS In case of dispute as to the interpretation of these Conditions the decision of the Auctioneers shall be final and binding on all parties save as provided for in clause 16(iv). 7 RESERVATIONS (i) The Auctioneers sell as agent for the Vendor and as such are not responsible for any default by the Vendor or Purchaser. 8 CATALOGUES AND ADVERTISEMENTS The Auctioneers cannot guarantee that any Lot described in any Catalogue or advertisement nor that any description therein contained can be relied upon as accurate. Any illustrations in Catalogues are for general identification only. 9 RESERVE PRICE AND BIDDING (i) The Purchaser shall be the person who makes the highest bid acceptable to the Auctioneers. (ii) No bidding shall be retracted. The bidding increments will be regulated by the Auctioneers. (iii) All Lots must be inspected by the Purchaser, Except as set out in these Conditions the bids are on the understanding that the Lots has been inspected and is purchased with all faults and imperfections. (vi) The Auctioneers may without giving any reason, refuse to accept the bidding of any person. (vii) The Auctioneers and/or the Vendor reserve the right to fix a Reserve Price for any lot. 10 PAYMENT (i) All Purchasers must register their names and addresses before they are permitted to bid in an online sale, The Auctioneers reserve the right to reject or terminate any registration at its sole discretion. (ii) On conclusion of the Auction period we will notify the Purchaser by email to confirm: (a) that the Purchaser is the winning bidder; and (b) the amount of the successful bid. (iii) Attached to the notification email will be an invoice for the amount of the winning bid plus any relevant commission and VAT. (iv) All lots must be paid for within 5 working days of the conclusion of the Auction period. (v) The Auctioneers may at their absolute discretion, agree to accept payment by such other means or such other manner as they see fit. (vi) All payments must be made by either Cheque, Bankers Draft, Postal Order, Debit Card, BACS or CHAPS, payments will not be accepted by credit card. 11 RESPONSIBILITY FOR LOTS At the fall of the hammer all risk and duty in the Lots shall pass to the Purchaser 12 RESERVATION OF TITLE (i) If not paid for on demand, the Lot shall be returned to the Saleground for resale. (ii) Title to Lots shall not pass to the Purchaser until payment in full is received (in cash or cleared funds) for the Lots, in which case title to these Lots shall pass at the time of payment of all such sums. (iii) Until title to Lots has passed to the Purchaser, the Purchaser shall: (a) store those Lots separately from all other goods held by the Purchaser so that they remain readily identifiable as the Vendor’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to those Lots; and (c) maintain those Lots in a good and marketable condition and keep them insured on the Vendor’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Vendor. (iv) Subject to clause 12(v), the Purchaser may resell or use the Lots in the ordinary course of its business (but not otherwise) before payment for the Lots is made in full (if the Purchaser resells the Lots before that time it does so as principal and not as agent). (v) If, before title to Lots passes to the Purchaser, the Purchaser suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits any inability to pay its debts, or is deemed by the Auctioneers to be unable to pay its debts, then without limiting any other right or remedy the Vendor may have: (a) the Purchaser’s right to resell the Lots or use them in the ordinary course of its business ceases immediately; and (b) the Vendor may at any time require the Purchaser to deliver up all Lots in its possession that have not been resold, or irrevocably incorporated into another product. 13 VALUE ADDED TAX ON PURCHASE PRICE VAT at the standard applicable rate will be added to the sale price of all lots unless they are exempt. 14 WARRANTY AND INSPECTION OF GOODS (i) Unless a warranty is specifically given for a particular Lot at the time of the Sale all Lots are sold with all faults and imperfections and errors of description. Purchasers should satisfy themselves prior to the sale of the Lot as to the condition of each Lot and should exercise and rely on their own judgement as to whether the Lot accords with its description. Neither the Auctioneers, their servants or agents are responsible for errors of description or for the genuineness or authenticity of any Lot. Unless otherwise stated no warranty is given by the Auctioneers, their servants or agents or by any Vendor to any Purchaser in respect of any Lot and any express or implied conditions or warranties are excluded to the fullest extent permitted by law. (ii) If any Lots are described at the same time of the Sale as in “working order” such Lots shall have no defect which renders them incapable of the reasonable work for which they are intended and they must be capable of performing such work for a period of 7 days commencing at 12 noon on the sale day subject always to clause 14(v) to clause 14(vii) inclusive set out below. (iii) Any Lot described by the Vendor as “just overhauled”, “straight from work”, “worked up to date of Sale” or “as new” or any other similar description will be deemed to have been sold with a warranty that such Lot is in “working order”. (iv) All electrical items require a current Electrician’s Safety Certificate and any item entered into the sale without a Certificate will either be refused entry or have the lead and plug removed and sold as scrap. Where electrical equipment is sold without specific instructions for use it is the responsibility of the Purchaser to take independent advice as to the correct operating procedures and any characteristics specific to them. The Auctioneers shall have no responsibility for the safe use of the item. (v) The Purchaser of any Lot is responsible for complying with all legal requirements as to the safe use of Lots purchased at the Sale and shall ensure compliance with all relevant legislation relating to the safe use of such Lots. (vi) The Purchaser will be deemed to have inspected any Lot and will be solely responsible for ensuring that the Lot complies with the Health & Safety at Work Act 1974 and in particular Sector Information Minute 01/2006/03 as issued or subsequently amended by the Health and Safety Executive or subsequent governing body prior to commencing use or work with such Lot. (vii) The Purchaser will provide if requested by the Vendor or the Auctioneer acting as Agent on behalf of the Vendor a written undertaking pursuant to Section 6(8) of the Health and Safety at Work Act 1974 to confirm that all duties under Sections 6(1)(a) or 6(1a) of the Health & Safety at Work Act 1974 have passed to the Purchaser at the fall of the hammer. 15 COMPLIANCE WITH ROAD TRAFFIC ACTS The Purchaser of any vehicle or trailer is responsible for complying with all legal requirements as to the construction and the use of such vehicle or trailer and for obtaining all certificates, permits or other authorisation necessary before such vehicle or trailer can be used on the road. 16 ACCEPTANCE AND DEFECTIVE LOTS (i) If the Purchaser fails to give notice of rejection in accordance with this clause, it shall be deemed to have accepted the Lots. (ii) Any Purchaser disputing the accuracy of any description or alleging breach of warranty of a Lot purchased shall: (a) in the case of a defect that is apparent on normal visual inspection, no later than 12:00 noon on the third working day following the Sale at which the Lot was purchased (such period may be extended at the Auctioneer's sole discretion) and shall return such Lot to the Storage Location not later than seven days following the sale date; (b) in the case of a latent defect, give notice to the Auctioneers as soon as possible following the latent defect having become apparent; (c) return the Lot to the Saleground (or other such location as notified to the Purchaser by the Auctioneers) within seven days of the Purchaser’s notice; and (d) within seven days of the Auctioneer’s request provide a competent engineer’s report setting out full details of the alleged defect. (iii) The Purchaser’s rights under clause 18 shall not apply if: (a) the Purchaser makes any further use of those Lots after giving notice or discovering the defect; (b) the defect arises because the Purchaser failed to follow any oral or written instructions for the storage, commissioning, installation, use and maintenance of the Lots or (if there are none) good trade price regarding the same; (c) the Purchaser alters or repairs those Lots; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (e) the Lots differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements. (iv) The Auctioneers may appoint as arbitrator any person including but without limitation any partners of their own firm or any person in their employ who decision shall be final and binding on the Vendor and the Purchaser. 17 RESALE DUE TO FAILURE OF COMPLIANCE (i) On failure of compliance with the Conditions, the Auctioneers may without prejudice to any other rights they may have, resell the Lot or Lots, either by public auction or private contract and the deficiency (if any) arising upon the resale together with all expenses shall be due as a debt by the defaulter of the first sale. (ii) The defaulter shall not be entitled to any surplus which may arise by such re-sale, which shall remain the property of the Auctioneers. (iii) Expenses shall be deemed to include the usual Auctioneers’ commission on the re-sale and all expenses for porters, advertising, market tolls, carriage, care, storage, keep and otherwise. (iv) For the avoidance of doubt, if any Lots are subject to a resale the Auctioneers shall not be required to obtain an equal or greater sale price than achieved during the first sale. 18 AUCTIONEERS’ RIGHT TO ANNUL SALES (i) In the event of any dispute or refusal to pay or of non-payment on the part of the Purchaser, the Auctioneers may, entirely at their discretion, annul and cancel the sale of such Lot of Lots. (ii) Persons viewing lots at the Storage Location are respectfully reminded that verbal or physical abuse of any person, especially the Auctioneer’s staff, will not be tolerated. 19 REMOVAL OF LOTS FROM STORAGE LOCATION (i) All Lots whether sold or unsold may not be removed from the Storage Location without a pass for the removal of Lots. Passes must be obtained from the Auctioneers’ offices. All Lots must be checked out by a representative of the Auctioneers. (ii) The Purchaser has no right to anything not described in the catalogue. (iii) The Purchaser will be responsible for removal of lots at his own expense and must provide his own labour and equipment. Such removal must be carried out safely and lawfully and in accordance with any conditions of sale of which the Purchaser is notified. (iv) All Lots purchased must be cleared from the Storage Location within two weeks of the date of the Sale in which they were purchased. (v) The Auctioneers reserve the right to sell entirely without reserve by auction at the next, or at any future Sale, any sold or unsold Lot which remains in the Storage Location for longer than the times specified in clause 19(iv) above, unless they have received and accepted in their sole opinion a satisfactory explanation in writing from the Purchaser or Vendor as to why the Lot remains in the Storage Location. 20 THIRD PARTY RIGHTS A person who is not a party to a contractual relationship under these Conditions shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act. 21 ENTIRE AGREEMENT You acknowledge that you have not relied on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Conditions). 22 SEVERANCE (i) If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to, or deletion of, a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Conditions. (ii) If any provision or part-provision of the Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. 23 APPLICABLE LAW These Conditions shall be governed and construed in accordance with English Law. All transactions to which these Conditions apply and all connected matters shall also be governed by English Law. IMPORTANT INFORMATION ONLINE TIMED MACHINERY AUCTION THE CARD USED TO REGISTER WITH PROXIBID IS USED FOR IDENTIFICATION PURPOSES ONLY. IT WILL NOT BE USED FOR PAYMENT PURPOSES. RESERVES There is a reserve on the majority of Lots included in the Brown & Co National Online Timed Machinery Auction. VAT VAT is payable on all lots unless otherwise stated. BIDDING All registrations for the Brown & Co National Online Timed Machinery Auction are provisional and subject to the approval of the auctioneer. Your Highest Bid will be treated as a valid bid even if at the time of placing it the RESERVE is NOT MET. Sellers regularly ask us to reduce the reserves in the closing hours and put items on sale. Remember when placing a bid you are bidding to buy! Details are provided in good faith. They should not be relied upon as fact and buyers must make their own investigations where measurements, mileages, hours, condition or authenticity are critical. Buyers should make themselves satisfied they are happy with the lot before they bid as viewing is available on all lots by prior appointment, all bids are non-retractable. Potential buyers who do not inspect lots prior to bidding, do so at their own risk. The condition and function of an item should be confirmed by the bidder, prior to bidding. As there will be NO Refunds or Allowance given after the closure of the bidding process. Your bid is your commitment to purchase. Not to view or negotiate after the sale. Transgression of these rules will be reported to Proxibid and the bidder will be blocked from taking part in any future Proxibid sales. No warranty is offered or implied. Each lot is bought and sold as seen. Viewing is welcome and recommended. If a bid is placed during the last 3 minutes of a lot’s closing time then the closing time is updated to end approximately 3 minutes from when the bid is placed. PAYMENT All payments must be made in GBP. All items purchased must be paid upon receipt of the invoice sent by the auctioneers and within 1 week of the auction date. If payment is not received within 3 weeks of the auction date the bidder will be blocked. We will only accept the following payment methods: 1. Debit card (subject to the conditions below); 2. Personal cheque (clearance of the cheque or bank guarantee required before goods leave, see below); 3. Bank/building society guaranteed cheque or draft; 4. Sterling draft; 5. Bank to bank transfer; and 6. Cash payment up to £7500. In order to comply with the Money Laundering Regulations, we are unable to accept cash payments for the sums in excess of £7500. This includes single payments amounting to this sum or multiple payments totalling £7500. We are also unable to accept any cash payments paid directly into our bank account. EXPORT OF GOODS All goods purchased at Brown & Co auctions that are to be exported or removed from the United Kingdom will: 1. Be dealt with under the requirements set out of HM Customs and Excise publications: a) VAT Notice 703 dated April 2014 – Export of goods from the United Kingdom. b) VAT Notice 712 dated January 2014 – The Single Market. c) VAT Information Sheet 2/00 dated May 2000 – Exports and Removals: Conditions for zero rating 1. Be ZERO RATED for VAT purposes subject to the following conditions being met: a) The buyer provides Brown & Co with their VAT/FISCAL NUMBER (which will be verified with UK Customs & Excise) at the time of purchase. b) The goods are removed from the United Kingdom within three months from the time of supply (the date of auction). c) Brown & Co are provided with valid commercial documentary evidence that the goods have been removed from the United Kingdom within three months of the auction date. Unless and until the above requirements are fulfilled Buyers will be charged VAT at the United Kingdom standard rate (currently 20%). This will only be refunded if all requirements within the regulations are met within the specified time limits. INVOICE ALTERATIONS After the sale day, we are unable to change or amend any invoice(s). This includes changing the VAT status of the purchaser, name and address of the buyer etc. Lots are also unable to be transferred between buyers after the sale day. There will be no exception to this rule. COLLECTION Items must be collected within two weeks of the Brown & Co National Online Timed Machinery Auction ending. The Auctioneers have the right to re-sell any item not collected after that date. BUYERS PREMIUM There is no buyers premium on any lot sold in the auction. INTERNET SURCHARGE An internet surcharge of 2% of the hammer price is payable on all lots. This is subject to VAT @ 20%. VIEWING Please contact onlineauctions@brown-co.com or call 01603 629871 for Viewings which are available by appointment.