1. OUR TERMS AND CONDITIONS
1.2 Once you have read and agreed to these terms and conditions you will be able to participate in our On-line Sale Event and The Marketplace, subject to us approving your registration and you paying any entrance fee as set out in Condition 4. If you do not agree with these terms and conditions, you are not authorised to use this Website.
1.3 A printed version of these terms and conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement between us to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
1.4 We may update these terms and conditions from time to time and any changes will be notified to you via the email address provided by you on registration or via a suitable announcement on our Website. The changes will apply to any use of our Website, including any bid you make, after we have given notice. If you do not wish to accept the new terms and conditions you should not make any further bids or continue to use our Website for any reason. If you make any further bids or continue to use our Website after the date on which the change(s) comes into effect, your use of our Website indicates your agreement to be bound by our new terms and conditions. For the avoidance of doubt, any change(s) made to these terms and conditions will not apply to any contract between us arising out of your use of our Website prior to the date on which the change(s) comes into effect or to any disputes between us arising out of your use of our Website prior to that date.
1.5 These terms and conditions may be varied by any special conditions identified in the sale information for individual Lots. In the event of any conflict or inconsistency between these terms and conditions and any Special Conditions, the Special Conditions shall prevail to the extent of any conflict or inconsistency.
2. LEGAL NOTICE
2.1 The content of this Website (such as text, graphics, logos, button icons, images, digital downloads, data compilations and software) is, unless specifically stated otherwise, protected by copyright, and other intellectual property rights. It may not be reproduced other than by downloading and viewing on a single CPU and/or printing a single hard copy, for private or internal business purposes only. It is not to be otherwise reproduced, transmitted, made available on a network or used to create derivative works without our prior written consent. All rights reserved.
2.2 The trademarks, logos and service marks shown on our Website, unless otherwise specified, are the trademarks of Apex, its Affiliates or clients. No rights are granted to use any of them without our prior written consent.
2.3 Any infringement of our rights or the rights of our Affiliates or clients will result in appropriate legal action.
2.4 Any framing of this Website is prohibited. We cannot accept any responsibility or liability for access to or the material on any site which is linked from or to this Website.
2.5 This notice is made by Apex Auctions Limited, registered in England with company number 04376357 with registered office at 168 Church Road, Brighton & Hove, East Sussex, BN3 2DL. Our postal address is PO Box 329, Brighton, BN1 1TQ. Our e-mail address is firstname.lastname@example.org and our telephone number is +44 (0) 1273 22 44 66.
3. DATA PROTECTION AND PRIVACY
4. USE OF THIS WEBSITE
4.1 You must be aged 18 years or over to use this Website; by creating an account you warrant to us that you are aged 18 years or older.
4.2 This Website is for businesses only and is currently not suitable for use by consumers. If you are not acting in the course of any business of yours you are not permitted to use this Website.
4.3 You must register with our Website before you will be able to submit a bid or make an offer for a Buy Now Lot. Once registered, you must be logged on to make a bid or an offer for a Buy Now Lot.
4.4 You acknowledge and agree that as the registered bidder, you will be bound by these Conditions and any Contract will be between you (as the successful bidder) and us, unless we agree otherwise in writing prior to the formation of the Contract.
4.5 You agree:
4.5.1 to provide accurate, and up to date information as required by the registration forms on the Website;
4.5.2 to update and maintain the accuracy of your registration information;
4.5.3 not to post malicious bids or other information to the Website; and
4.5.4 to report any misuse of the website or any misleading or inappropriate material on the Website.
4.6 Apex reserves the right to reject any registration at its sole discretion.
4.7 We may ask you to pay us an entrance fee on initial registration or when you register for an On-line Sale Event. We will not allow you to place any bid or make an offer for a Buy Now Lot until we have received notification from our bank that the entrance fee has been received in our client account as cleared funds.
4.8 You may pay the entrance fee by:
4.8.1 debit card (up to the value of 5,000GBP), BACS, CHAPS or by wire transfer (a “Cash Entrance Fee”); or
4.8.2 credit card (a “Credit Entrance Fee”).
4.9 Any entrance fee will be held for you in a non-interest bearing client account.
4.10 You may draw down monies against the Cash Entrance Fee to pay any sums due by you under a Contract. However, draw down against the Credit Entrance Fee is not permitted under any circumstances.
4.11 Subject to Conditions 10.7, 10.8 and 12.1 and any draw down you have made, the entrance fee or any remaining part of the entrance fee is refundable at your request.
4.12 If you draw down monies against the entrance fee or if we refund the entrance fee in whole or in part, we reserve the right to request an additional entrance fee before you will be allowed to submit any further bids or offers. Any such additional entrance fee will be treated in the same manner as the entrance fee paid on registration.
5.1 Access to your user account, individual On-line Sale Events and/or The Marketplace will be gained by using the username and the password selected by you during the registration procedure. You are responsible for ensuring the confidentiality and proper use of your username, password and account and for restricting access to your computer and you agree to accept responsibility for all activities that occur under your account or password. In order to assist us with our security policy, you should not leave your computer terminal unattended while you are logged on to our Website and should ensure that it is switched off each time you have finished.
5.2 You must tell us immediately if you believe an unauthorised person knows your username or password or has access to your account.
5.3 We reserve the right to refuse service or terminate accounts.
5.4 You agree that we shall not be liable for any losses you suffer as a result of unauthorised access to your account until such time as you have informed us of any unauthorised or possible unauthorised use of your username and password or of a breach of security.
This Website may include hyperlinks to sites operated by other parties but we are not responsible for examining or evaluating them and their inclusion does not imply our endorsement of their material. You therefore agree that we will not incur any liability in respect of the content of any site accessed through a hyperlink contained on this Website.
7. OUR CUSTOMER COMPLAINTS POLICY
We are committed to meeting the highest quality standards in the delivery of the service we provide to our customers. We aim to provide an efficient and effective service and take any problems that do arise very seriously indeed. We aim to ensure that any complaints our customers may have are identified quickly and dealt with in accordance with our complaints handling procedure. In the event that you have any cause for complaint with regard to our website please click on the “Contact Us” icon at the top of this page. We will investigate your complaint in accordance with an internal written procedure which involves:-
7.1 acknowledging any complaint and responding within 28 days or, if that is not possible, letting you know within that time when we will be able to respond fully;
7.2 carrying out a review of your matter;
7.3 responding to you with our views on your complaint and how we propose to resolve it;
7.4 if you are not satisfied with our response, instigating a further review by our customer service department.
8. BASIS OF SALE
8.1 Each bid you submit in an On-line Sale Event or The Marketplace is an offer by you to purchase the Lot in accordance with these terms and conditions. However, even if the system shows you as the winning bidder and/or you receive an email confirming you are the highest bidder, no bid submitted by you is accepted as the highest successful bid and no contract shall exist between us until we confirm our acceptance of your bid by invoice.
8.2 Apex has the absolute discretion to determine the successful bidder. If Apex doubts the validity of any bid, it may at its sole discretion cancel the sale or re-offer and re-sell the Lot and/or take such other action as it deems fit.
8.3 You may make an offer to purchase a Buy Now Lot subject to these terms and conditions. We will use reasonable endeavours to process any offer for a Buy Now Lot within 48 hours of receipt of the offer. However, any such offer must be approved by the Seller and no Contract shall exist until we notify you of the Seller’s acceptance by e-mail or by invoice.
8.4 If your offer to purchase a Buy Now Lot is rejected by the Seller, you may make two further offers to purchase the Buy Now Lot. If your third offer is rejected by the Seller, you may not make any further attempts to pre-purchase the Buy Now Lot. This does not affect your right to place bids for the Buy Now Lot in the course of an On-line Sale Event or via The Marketplace.
8.5 Without any liability to any prospective Buyers:
8.5.1 Apex may alter or withdraw any Lot for any reason up to the moment at which bidding closes in relation to that particular Lot;
8.5.2 where two or more consecutive Lots are similar in quantity and description we may offer a choice on any subsequent Lots to the Buyer at the same price; and
8.5.3 Apex may refuse to accept or may cancel or delete any bid without giving any reason.
8.6 Apex, its Affiliates, the Seller or any agent acting on the Seller’s behalf may bid for any Lot.
8.7 Any Contract shall be subject to these terms and conditions (and any Special Conditions), which supersede any other terms and which govern your access to and use of our Website and any Contract to the exclusion of any terms and conditions which you purport to apply or which are implied by trade, custom or course of dealing. No terms or conditions transmitted by you will form part of any Contract or apply to your access to and use of our Website simply as a result of such terms and conditions being communicated to us.
9. DESCRIPTION AND VIEWING
9.1 Lots are sold with all faults and imperfections.
9.2 Prior to any sale, you may view Lots at the Premises on the viewing days specified in the sale information or as otherwise agreed with Apex by appointment. You should satisfy yourself prior to submitting a bid as to the condition of each Lot. Any statement made by Apex, its agents or its Affiliates as to the Lot is a statement of opinion only and you should rely on your own judgement in all matters concerning the Lot.
9.3 Any product description, Catalogue and content on our Website or otherwise issued by us is intended merely to present a general idea of the Lot and does not form part of any Contract.
9.4 Any error or omission on our Website or in any document or information issued by us or displayed on our Website shall be subject to correction without any liability on our part.
9.5 Neither Apex or its agents or Affiliates makes or gives any representation or warranty in relation to any Lot and all implied conditions or warranties are excluded to the maximum extent permitted by law.
10.1 The Buyer shall pay to Apex the Total Amount Due. The Buyer acknowledges and agrees that Apex when acting as agent for the Seller may also receive a Seller’s Commission.
10.2 For sales to UK Buyers, we accept payment by debit card (up to a value of 5,000 GBP) or by bank transfer (by CHAPS and BACS).
10.3 For sales to Buyers outside the UK, we accept payment only by wire transfer.
10.4 Payment of the Total Amount Due is due at the Closing Date and Apex will send the Buyer an email notifying that the invoice is available to view and print in the 'My Invoices and Payments' section.
10.5 Time of payment is of the essence. Payment is received when we receive notification from our bank that the payment has been received in our client account as cleared funds.
10.6 We may charge you interest and claim debt recovery costs in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002 on overdue accounts from the seventh day after the Closing Date until the date of payment.
10.7 If you fail to make any payment on the due date then the whole price of all Lots agreed to be bought by you shall be immediately due and payable without demand and we may cancel any Contract or suspend delivery or our performance or appropriate any payment made by you, including but not limited to any entrance fee paid on registration, to such of the Lots (or the goods or services supplied under any other contract between us) as we think fit.
10.8 We are entitled to set off sums owed by us to you, including but not limited to any entrance fee paid on registration, against sums owed by you to us. You may not deduct any amounts from the Total Amount Due.
11. VALUE ADDED TAX (VAT)
11.1 The Buyer shall pay any VAT, which may be due on any amounts owed by the Buyer under these Conditions at the rates prevailing at the Closing Date.
11.2 In accordance with the EC Sixth VAT Directive (77/388/EEC), Non-EC Buyers will be charged VAT at the UK rate prevailing at the Closing Date. Upon receipt of a copy of the bill of lading or CMR note as proof of export, the VAT will be refunded on the Closing Price and the Buyer’s Premium. VAT will not be refunded unless proof of export is provided within 3 months from and including the Closing Date.
11.3 In accordance with the EC Sixth VAT Directive (77/388/EEC), Buyers that are VAT registered in an EC Member State will be charged VAT at the UK rate prevailing at the Closing Date. Upon receipt of a copy of the bill of lading or CMR note as proof of removal from the UK, the VAT will be refunded on the Closing Price and the Buyer’s Premium. VAT will not be refunded unless such proof of removal is provided within 3 months from and including the Closing Date. Apex will also require the Buyer’s EC VAT number shown on company headed paper in order to zero-rate the supply.
12. COLLECTION OF LOTS PURCHASED
12.1 At the Buyer's sole cost and expense, the Buyer shall collect the Lot purchased from the Premises not later than the Clearance Deadline, but not before payment to Apex of the Total Amount Due in full and cleared funds and subject to Condition 13. This Condition shall be of the essence of the contract.
12.2 If, at any time during the Clearance Days, the Buyer will not, in Apex’s reasonable opinion, be able to complete the collection of the Lot from the Premises by the Clearance Deadline, the Clearance Deadline shall be deemed to have occurred and the Buyer shall be deemed to be in breach of Condition 12.1.
12.3 Packing and handling of purchased Lots is at the entire risk and expense of the Buyer. Apex is not responsible for acts or omissions by packers or shippers of purchased Lots, whether or not such persons are recommended by Apex.
12.4 Access to the Premises to remove a Lot will be given only from 9 am to 4 pm (local time) Monday to Friday, unless otherwise stated. However, if payment in full has not been made in accordance with these Conditions, Apex may in its sole discretion refuse the Buyer (or the Buyer’s subcontractors or agents) access to the Premises to view or remove a Lot or may only allow access subject to such additional conditions as Apex sees fit to impose.
12.5 It is a condition of sale that, where hold down bolts or studs and grouting surrounding a Lot is exposed by a Buyer removing that Lot, the floor will be left without protrusions and flush with floor level, rubbish will be disposed of and the floor swept.
12.6 All personnel intending to operate lifting or moving equipment at the Premises must first produce to the Apex supervisor, current operating licenses, current equipment certificates and proof of all relevant insurances. They will be expected to work to the Seller’s, Apex’s and current health & safety regulations and may be ordered off the Premises at any time for breach of these regulations.
13. SUPERVISION OF AND DAMAGE CAUSED BY REMOVAL OF LOTS PURCHASED
13.1 The Buyer will only remove a Lot from the Premises by previous arrangement with, and subject to the supervision of Apex or its appointed representative. Any disconnection of a Lot from the main electricity supply shall be undertaken by a fully qualified electrician at a point below the junction box.
13.2 The Buyer shall be responsible for all damage that it, its carriers or its agents may do to the property of any third party (and in particular to the Premises) in removing the Lot it has purchased.
13.3 If, in Apex’s opinion, removal of any Lot will be likely to cause damage to the Premises or any other damage Apex may by notice to the Buyer:
13.3.1 rescind the sale of such Lot; or
13.3.2 permit the removal of the Lot from the Premises subject to such conditions as it may think fit to impose, including but not limited to requiring that the Buyer deposits with Apex such sum of money as Apex may require as security for the cost of making good such damage,
and the Buyer shall be liable to Apex for any costs and expenses Apex incurs in connection with this Condition 13.
13.4 Should the Buyer refuse to deposit such monies as may be required under Condition 13.3.2, Apex may refuse the Buyer access to the Premises for the purpose of collecting all or any of the Lot it has purchased or rescind the sale of such Lot pursuant to Condition 13.3.1.
14. THIRD-PARTY CLAIMS
14.1 Should any person claim possession of or title to all or part of a Lot prior to its removal from the Premises, Apex reserves the right to rescind the sale of that Lot or to permit the removal of the Lot from the Premises subject to such conditions as it may see fit to impose.
14.2 If Apex voids the sale the Buyer’s sole remedy shall be the reimbursement by Apex of the Total Price Due in respect of that Lot or part Lot as the case may be.
15. REMEDIES FOR NON- PAYMENT OR FAILURE TO COLLECT PURCHASES
15.1 If the Total Amount Due is not paid on any Lot or the Buyer fails to collect the Lot in each case in accordance with these Conditions the Buyer will be in default and Apex, as agent of the Seller or for itself, as appropriate, shall, at its absolute discretion and without prejudice to any other rights it may have, be entitled to exercise one or more of the following rights and remedies:
15.2 proceed against the Buyer for damages for breach of contract;
15.3 cancel or rescind the sale of that or any other Lots sold to the defaulting Buyer at the same or any other sale, retaining as compensation all payments made by the Buyer referable to any losses, costs or expenses incurred by the Seller or Apex as a result of the Buyer's default;
15.4 re-sell the Lot or cause it to be re-sold by Apex or any of its Affiliates by auction or private sale, and hold the Buyer liable for the Deficiency. The defaulting Buyer hereby agrees that any resale price shall be deemed commercially reasonable;
15.5 hold the Buyer liable for the Total Amount Due and the Deficiency;
15.6 reduce the Total Amount Due or the Deficiency or any other amounts the Buyer owes to Apex or its Affiliates by:
15.6.1 any proceeds of sale then due to or thereafter becoming due to the Buyer from Apex or its Affiliates; or
15.6.2 any payment made by the Buyer to Apex or its Affiliates, whether or not intended to reduce the Buyer's obligation under the Contract;
15.7 until payment of all outstanding amounts due to Apex or its Affiliates have been made in full, exercise a lien on any property of the defaulting Buyer which is in the possession of Apex or its Affiliates for any purpose and to sell the same;
15.8 charge the Buyer a minimum handling charge payable to Apex by the Buyer of one percent (1%) plus VAT of the Total Amount Due per month commencing on the seventh day after the sale and for each successive month or part month;
15.9 insure, remove and store the Lot either at Apex' premises or elsewhere at the sole risk and expense of the defaulting Buyer;
15.10 charge the Buyer interest in accordance with Condition 10.6;
15.11 hold the Buyer liable to indemnify Apex against any loss or damage suffered by Apex which directly or indirectly is attributable to the nature of any plant, equipment or machinery of that Lot or any other Lots whether through breakage rust, decay, desiccation, leakage, wastage, inherent or latent defect or vice or natural deterioration.
16. RISK AND PROPERTY
16.1 The Lot remains the property of the Seller until:-
16.1.1 we receive notification from our bank that the Total Amount Due has been received in our account as cleared funds;
16.1.2 the payment has been allocated to the Lot;
16.1.3 the Lot has been removed from the Premises in its entirety; and
16.1.4 all other sums which are or which become due from you on any account with us have been received by us in cleared funds.
16.2 Irrespective of whether payments received from you are stated to refer to a particular invoice, we may appropriate such payments to any outstanding invoice.
16.3 The Lot is at your risk from the Closing Date.
16.4 Until ownership of the Lot passes to you, you must:-
16.4.1 not destroy, deface or obscure any identifying mark on the Lot;
16.4.2 maintain the Lot in a satisfactory condition insured on our behalf for its full price against all risks; and
16.4.3 hold the proceeds of insurance referred to in Condition 16.4.2 on trust for us and not mix them with any other money, nor pay the proceeds into an overdrawn account.
16.5 We may at any time recover or resell the Lot in respect of which property remains with us under Condition 16.1. You agree that we shall be entitled by our employees and/or agents to enter any of your premises where the Lot is stored for such purpose and undertake to procure the right for us, our employees and agents to enter any premises of any third party where the Lot is stored.
16.6 This Condition 16 shall survive expiry or termination of any Contract.
17. LIMITATION OF LIABILITY
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
17.1 The following sets out our entire liability (including any liability for the acts or omissions of our Affiliates, employees, agents or subcontractors) to you in respect of any access or use by you of our Website or breach of these terms and conditions, any representation or statement made or any act or omission relating to or done in connection with this Website or any Contract and in respect of any contemplated performance or lack of performance including liability for negligence and other tortious liability.
17.2 All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law but this exclusion does not apply to any implied condition that we have or will have the right to sell the Lot when the property is to pass.
17.3 We make no warranty that the Lot will meet your requirements or that your access to the Website will be uninterrupted, timely or error free. We will not be responsible if we are unable to provide access to or use of our Website for whatever reason.
17.4 This Website or any part of it may not be compatible with your browser or computer configuration and we make no warranty that it is.
17.5 We have used reasonable care and skill in compiling the contents of this Website but we make no warranty (express or implied) as to the nature or accuracy of any material on this Website.
17.6 You warrant to us that you are not a consumer and that you will not use this Website for any unlawful or malicious purposes or in a way that is prohibited by these terms and conditions. We may immediately terminate your account and your ability to access this Website if you breach any of these terms and conditions or if we believe that we or our other customers may incur liability from your actions.
17.7 Subject to Conditions 17.2 and 17.8:-
17.7.1 we shall not be liable to you for:-
(a) any loss or corruption of data or any loss of profit, loss of production, depletion of goodwill; and
(b) any indirect loss, damage, costs or expenses whatsoever
in each case which arise out of or in connection with your access or use of our Website or any material on it, the result of any use made of our Website or such material or any Contract; and
17.7.2 subject to Condition 17.7.1, our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with your access or use of our Website or any material on it, the result of any such use or material or the performance or contemplated performance of any Contract shall be limited to the Buyer’s Premium relating to the Lot you purchased under which the claim arises for any one event or series of connected events.
17.8 You acknowledge and agree that Apex has neither inspected the Premises nor has any control over it and that consequently neither Apex nor its Affiliates nor any of their respective officers, employees or agents shall have any liability for personal injury, death or damage to your personal property or that of your agents or representatives occurring while you or such persons are attending the Premises to view the Lot or to remove the Lot in accordance with Condition 12; except where such personal injury or death is caused by the negligence of Apex when providing supervision under Condition 13.1.
17.9 Except as expressly set out in Condition 17.8, nothing in these Conditions excludes or limits our liability for death or personal injury caused by our negligence or for fraudulent misrepresentation or any other liability to the extent such liability may not be excluded or limited as a matter of law.
You agree to indemnify us against any damages, losses, costs, claims or expenses incurred by us towards a third party arising out of or in connection with your use of our Website or the viewing or removal of the Lot from the Premises and whether arising by reason of our negligence or otherwise.
19.1 Any Contract shall terminate immediately upon the happening of any one or more of the following:-
19.1.1 you are dissolved or have a bankruptcy order made against you or make an arrangement or composition with your creditors; or
19.1.2 you convene a meeting of creditors or enter into liquidation (voluntary or compulsory); or
19.1.3 you have a receiver, manager or administrative receiver appointed of any part of your undertaking, property or assets; or
19.1.4 a resolution is passed or a petition presented to any court for your winding-up or any person takes any step to appoint an administrator of you; or
19.1.5 any proceedings are commenced relating to your insolvency or your possible insolvency in any jurisdiction to which you or any of your assets are subject.
19.2 Any Contract shall terminate immediately upon service of written notice of termination by us on you on the happening of any one or more of the following:-
19.2.1 you have, suffer or allow any execution to be levied on your assets or obtained against you; or
19.2.2 you commit a material breach of any of your obligations under the Contract or under any other contract with us; or
19.2.3 you are unable to pay your debts as they fall due; or
19.2.4 you cease or threaten to cease to trade.
19.3 Termination of any Contract shall not affect rights and duties accrued before termination and in particular, shall not affect our rights contained in Condition 16. However, your rights contained in that Condition shall immediately terminate.
20. HEALTH AND SAFETY
You acknowledge and agree that any Lot may not comply with H&S legislation governing the use of that Lot in a working environment. You must ensure (at your own expense) that use of the Lot at a place of work within the country of use does not contravene any H&S Legislation.
21. TOXIC CHEMICALS AND DANGEROUS SUBSTANCES
21.1 You acknowledge and agree that Lots may contain hazardous materials or dangerous chemicals which if not handled correctly during their removal from the Premises could be in breach of H&S Legislation or any other current legislation covering the use of such substances in a working environment.
21.2 You must (at your own expense) comply with all current legislation and regulations in relation to the removal and disposal of waste including hazardous waste and you may need to satisfy Apex in relation to your removal and disposal procedures. Where waste materials are removed all work must be undertaken by an approved and licensed contractor at the Buyer’s expense.
In these terms and conditions, the following expressions have the following meanings:
“Affiliate” any company which directly or indirectly controls, is controlled by, or is under common control with, Apex through the holding or controlling of a majority of voting rights or the right to appoint or remove a majority of the board of directors;
“Apex” Apex Auctions Limited whose office address is PO BOX 329, Brighton, BN1 1TQ, United Kingdom, company number 04376357;
“Buyer” the highest bidder for a Lot acknowledged by Apex to be the successful bidder;
“Buyer’s Premium” the premium payable to Apex by the Buyer on the sale of any Lot and being a sum equal to sixteen percent (16%), or such other percentage as specified in the sale information, of the Closing Price plus applicable VAT;
“Buy Now Lot” a Lot carrying an option to pre-purchase prior to the Closing Date;
“Catalogue” includes any advertisement, brochure, estimate, price list and other publication of Apex or its Affiliates;
“Clearance Days” the period allotted for removal of the Lot from the Premises, as specified in the sale information;
“Clearance Deadline” 4 pm (local time) on the final Clearance Day, or such other date and time as may be agreed between the parties;
“Closing Date” the date and time specified in the sale information (subject to any extension by overtime bidding);
“Closing Price” the final price when bidding ends or in the case of the sale of a Buy Now Lot the agreed price, in all instances excluding the Buyer's Premium and any applicable taxes;
“Contract” any contract for sale and purchase of the Lot which incorporates and is subject to these terms and conditions and any applicable Special Conditions;
“Deficiency” all handling charges, interest, collection fees, incidental liabilities, costs (including without limitation legal fees and expenses) and storage, removal and insurance fees and with respect to any resale whether by private sale or at public auction any shortfall between the original Closing Price and the resale Closing Price, the Expenses of both sales, the Seller’s Commission and the Buyer's Premium on both sales and any VAT which may be due;
“Expenses” in relation to the sale of any Lot, Apex’s charges and expenses including but not limited to charges and expenses for insurance, the Catalogue and other reproductions and illustrations, any customs duties, advertising, packing and shipping costs, reproduction rights fees, costs of testing, searches or enquiries relating to any Lot and any applicable VAT;
“H&S Legislation” any and all legislation relating to health and safety, including but not limited to the Health and Safety at Work etc Act 1974 and any statute or regulation made under that act and the Control of Substances Hazardous to Health Regulations 1988;
“Lot” an item or collection of items offered for sale through the Website;
“Online Sale Event” an individual sale of a Lot from a single Seller or multiple Sellers;
“Premises” the land and buildings at which the goods comprising a Lot are located at the date of the sale as specified in the sale information;
“Seller’s Commission” the commission payable to Apex by a Seller plus applicable VAT;
“Seller” the owner or its authorised agent or person in possession of the property consigned, other than Apex or its Affiliates;
“Special Conditions” any terms and conditions identified as ‘Special Conditions’ in the sale information to a specific Lot, including but not limited to the Seller’s terms and conditions of sale;
“The Marketplace” the area of the Website where a number of items each with their own individual closing time are submitted by multiple Sellers;
“Total Amount Due” the Closing Price in respect of the Lot sold, together with any Buyer's Premium, any applicable VAT, any customs duties and any additional charges, fees and expenses due from a Buyer or a defaulting Buyer; and
23.1 In these terms and conditions:-
23.1.1 References to “we” or “us” are references to Apex and references to “you” are references to the person registered as the user of the Website;
23.1.2 the singular includes the plural and vice versa;
23.1.3 references to persons include bodies corporate, unincorporated associations, governments, states, partnerships and trusts (in each case, whether or not having separate legal personality);
23.1.4 headings shall not affect interpretation;
23.1.5 any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force; and
23.1.6 references to “Lot”, “Contract” or any payment includes any part of them or it.
23.2 Each of our rights or remedies is without prejudice to any other of our rights or remedies.
23.3 Each of the provisions contained in these terms and conditions shall be construed as being independent of every other and if any provision contained in the terms and conditions is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to the limitations on liability, such determination shall not affect the validity of the remainder of the terms and conditions which shall continue in effect.
23.4 Our Website is operated and controlled from the United Kingdom and these terms and conditions and your use of this Website are governed by and construed in accordance with the laws of England and Wales. By agreeing to these terms and conditions you consent to all disputes arising out of or relating to your use of this Website being decided only by the courts of England and Wales. If you are accessing this Website from another jurisdiction it is your responsibility to ensure compliance with the laws that apply to that jurisdiction.
23.5 We may perform any of our obligations or exercise any of our rights by ourselves or through any of our Affiliates. We may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of our rights or beneficial interests under it.
23.6 You are not permitted to assign your rights and obligations under these terms and conditions.
23.7 All rights under the Contracts (Rights of Third Parties) Act 1999 are excluded.
23.8 Failure or delay by us in enforcing or partially enforcing any provision of these terms and conditions is not a waiver of any of our other rights. In particular, any extension to or relaxation of the Clearance Date shall be without prejudice to, and shall not operate as a waiver of any breach of, Condition 12.1.
23.9 Any waiver by us of any breach by you is not a waiver of any subsequent breach.
23.10 Any notice to be given by either of us to the other under these terms and conditions must be by e-mail addressed to that other party at the e-mail address which you complete in the registration form or our e-mail address as set out in our confirmation of registration or such other address as we may notify you for these purposes.