Sworders Modern British & 20th Century Art 20 April 2021

139 9. Remedies for non-payment or failure to collect purchases 9.1 Please do not bid on a Lot if you do not intend to buy it. If your bid is successful, these Terms of Sale will apply to you. This means that you will have to carry out your obligations set out in these Terms of Sale. If you do not comply with these Terms of Sale we may (acting on behalf of the Seller and ourselves) pursue one or more of the following measures: 9.1.1 take action against you for damages for breach of contract; 9.1.2 reverse the sale of the Lot to you and/or any other Lots sold by us to you; 9.1.3 resell the Lot by auction or private treaty (in which case you will have to pay any difference between the Price you should have paid for the Lot and the Price we sell it for as well as the charges outlined in Clause 8.7). Please note that if we sell the Lot for a higher amount than your winning bid, the extra money will belong to the Seller; 9.1.4 remove, store and insure the Lot at your expense; 9.1.5 if you do not pay us within five business days of your successful bid, we may charge interest at a rate not exceeding 1.5% per month on the total amount due; 9.1.6 keep that Lot or any other Lot sold to you until you pay the total amount due, including Shipping Costs where applicable; 9.1.7 reject or ignore bids from you or your agent at future auctions or impose conditions before we accept bids from you; and/or 9.1.8 if we sell any Lots for you, use the money made on these Lots to repay any amount you owe us. 9.2 We will act reasonably when exercising our rights under Clause 9.1. We will contact you before exercising these rights and try to work with you to correct any non- compliance by you with these Terms of Sale. 10. Health and safety Although we take reasonable precautions regarding health and safety, you are on our premises at your own risk. Please note the lay-out of the premises and security arrangements. Neither we nor our employees or agents are responsible for the safety of you or your property when you visit our premises, unless you suffer any injury to your person or damage to your property as a result of our employees’ or our agents’ negligence. 11. Warranties 11.1 The Seller warrants to us and to you that: 11.1.1 the Seller is the true owner of the Lot for sale or is authorised by the true owner to offer and sell the Lot at auction; 11.1.2 the Seller is able to transfer good and marketable title to the Lot to you free from any third party rights or claims; and 11.1.3 as far as the Seller is aware, the main characteristics of the Lot set out in the auction catalogue (as amended by any notice displayed in the saleroom or announced by the Auctioneer at the auction) are correct. 11.2 If, after you have placed a successful bid and paid for a Lot, any of the warranties above are found not to be true, please notify us in writing. Neither we nor the Seller will be liable to pay you any sums over and above the total amount due and we will not be responsible for any inaccuracies in the information provided by the Seller except as set out below. 11.3 Please note that many of the Lots that you may bid on at our auction are second-hand. 11.4 If a Lot is not second-hand and you purchase the Lot as a Consumer from a Seller that is a Trader, a number of additional terms may be implied by law in addition to the Seller’s warranties set out at Clause 11.1 (in particular under the Consumer Rights Act 2015). These Terms of Sale do not seek to exclude your rights under law as they relate to the sale of these Lots. 11.5 Save as expressly set out above, all other warranties, conditions or other terms which might have effect between the Seller and you, or us and you, or be implied or incorporated by statue, common law or otherwise are excluded. 12. Descriptions and condition 12.1 Our descriptions of the Lot will be based on: (a) information provided to us by the Seller of the Lot (for which we are not liable); and (b) our opinion (although it is likely that we will not be able to carry out a detailed inspection of each Lot). 12.2 We will give you a number of opportunities to view and inspect the Lots before the auction. You (and any independent consultants acting on your behalf) must satisfy yourself about the accuracy of any description of a Lot. We shall not be responsible for any failure by you or your consultants to properly inspect a Lot. 12.3 Representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling Price involve matters of opinion. We undertake that any such opinion will be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. 12.4 Please note that Lots (in particular second-hand Lots) are unlikely to be in perfect condition. Lots are sold ‘as is’ (i.e. as you see them at the time of the auction). Neither we nor the Seller accept any liability for the condition of second-hand Lots or for any condition issues affecting a Lot if such issues are included in the description of a Lot in the auction catalogue (or in any saleroom notice) and/ or which the inspection of a Lot by the Buyer ought to have revealed. 13. Deliberate Forgeries 13.1 You may return any Lot which is found to be a Deliberate Forgery to us within thirty days of the auction provided that you return the Lot to us in the same condition as when it was released to you, accompanied by a written statement identifying the Lot from the relevant catalogue description and a written statement of defects. 13.2 If we are reasonably satisfied that the Lot is a Deliberate Forgery we will refund the money paid by you for the Lot (including any Premium and applicable VAT) provided that if: 13.2.1 the catalogue description reflected the accepted view of experts as at the date of the auction; or 13.2.2 you personally are not able to transfer good and marketable title in the Lot to us, you will have no right to a refund under this Clause 13.2. 13.3 If you have sold the Lot to another person, we will only be liable to refund the Price that you paid for the Lot. We will not be responsible for repaying any additional money you may have made from selling the Lot. 13.4 Your right to return a Lot that is a Deliberate Forgery does not affect your legal rights and is in addition to any other right or remedy provided by law or by these Terms of Sale. 14. Our liability to you 14.1 We will not be liable for any loss of opportunity or disappointment suffered as a result of participating in our auction. 14.2 In addition to the above, neither we nor the Seller shall be responsible to you and you shall not be responsible to the Seller or us for any other loss or damage that any of us suffer that is not a foreseeable result of any of us not complying with the Terms and Conditions. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen. 14.3 Subject to Clause 14.4, if we are found to be liable to you for any reason (including, amongst others, if we are found to be negligent, in breach of contract or to have made a misrepresentation), our liability will be limited to the total purchase price paid by you to us for any Lot. 14.4 Notwithstanding the above, nothing in these Terms of Sale shall limit our liability (or that of our employees or agents) for: 14.4.1 death or personal injury resulting from negligence (as defined in the Unfair Contract Terms Act 1977); 14.4.2 fraudulent misrepresentation; or 14.4.3 any liability which cannot be excluded by law. 15. Notices 15.1 All notices between you and us regarding these Terms of Sale must be in writing and signed by or on behalf of the party giving it. 15.2 Any notice referred in Clause 15.1 may be given: 15.2.1 by delivering it by hand; 15.2.2 by first class pre-paid post or recorded delivery; or 15.2.3 by email, provided that receipt of the email is acknowledged by the recipient. 15.3 Notices must be sent: 15.3.1 by hand or registered post; a. to us, at our address set out in these Terms of Sale or at our registered office address appearing on our Website; and b. to you, at the last postal address that you have given to us as your contact address in writing; or 15.3.2 by email: a. to us, by sending the notice to the following email address: auctions@sworder.co.uk b. to you, by sending the notice to any email address that you have given to us as your contact email address in writing. 15.4 Notices will be deemed to have been received: 15.4.1 if delivered by hand, on the day of delivery; 15.4.2 if sent by first class pre-paid post or recorded delivery, two business days after posting, exclusive of the day of posting; or 15.4.3 if sent by email, at the time of transmission unless sent after 17.00 in the place of receipt in which case they will be deemed to have been received on the next business day in the place of receipt (provided that receipt is acknowledged by the recipient). 15.5 Any notice or communication given under these Terms of Sale will not be validly given if sent by fax, email, any form of messaging via social media or text message. 16. Data Protection We will hold and process any personal data in relation to you in accordance with our current privacy policy, a copy of which is available on our Website. 17. General 17.1 We may, acting reasonably, refuse admission to our premises or attendance at our auctions by any person. 17.2 We act as an agent for our Sellers. The rights we have to claim against you for breach of these Terms of Sale may be used by either us, our employees or agents, or the Seller, its employees or agents, as appropriate. Other than as set out in this Clause, these Terms of Sale are between you and us and no other person will have any rights to enforce any of these Terms of Sale. 17.3 We may use special terms in the catalogue descriptions of particular Lots. You must read these terms carefully along with any glossary provided in our auction catalogues. 17.4 Each of the clauses of these Terms of Sale operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect. 17.5 We may change these Terms of Sale from time to time, without notice to you. Please read these Terms of Sale carefully, as they may be different from the last time you read them. 17.6 Except as otherwise stated in these Terms of Sale, each of our rights and remedies are: (a) are in addition to and not exclusive of any other rights or remedies under these Terms of Sale or general law; and (b) may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under these Terms of Sale is not a waiver of that or any other right. Partial exercise of any right under these Terms of Sale will not preclude any further or other exercise of that right or any other right under these Terms of Sale. Waiver of a breach of any term of these Terms of Sale will not operate as a waiver of breach of any other term or any subsequent breach of that term. 17.7 These Terms of Sale and any dispute or claim arising out of or in connection with them (including any non- contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts. These terms are based upon the recommended terms of sale by the Society of Fine Art Auctioneers and Valuers