Terms and Conditions for the Sale of Equipment through Auction or Private Treaty
The Seller’s Attention is specifically drawn to conditions 4, 7.1, 9 and 10.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition apply in these conditions (conditions).
Auctioneer: the person duly authorised by Moody to conduct the sale by auction or private treaty.
Buyer: the person, firm or company who buys the Item.
Buyer’s Premium: the commission due to Moody by the Buyer at the Stated Rate on the Hammer Price.
Buyer’s Terms: the conditions entered into by a Buyer with Moody and the Seller to purchase an Item at an auction or private treaty conducted by Moody on behalf of the Seller.
Catalogue: includes any website (www.moodybid.com, www.moodyauctions.com), advertisement, brochure, estimate, price list and other publication in connection with an auction or private treaty conducted by Moody for the sale of the Equipment.
Equipment: the plant and equipment owned by the Seller to be sold at auction or by private treaty by Moody on behalf of the Seller and listed for sale in the Catalogue.
Hammer Price: the price at which an Item is Knocked Down during the auction or the price agreed between Moody and the Buyer in a sale by private treaty.
Internet Auction Service: where available, a service operated by Moody (or its nominee contracted to provide the Internet Auction Service) to enable a potential Buyer to attend or view an auction or private treaty and place offers to purchase Items using internet access, live webcast, online bidding, by telephone and/or any analogous format (as the case may be).
Item: an item of Equipment.
Knocked Down: acceptance by Moody of the best offer from a Buyer to purchase an Item.
Legislation: all statutory acts and regulations relating to the use, operation, removal, transportation and disposal of any Equipment including but not limited to the Health and Safety at Work etc Act 1974; Water Industry Act 1991; The Provision and User of Work Equipment Regulations 1998; Lifting Operations & Lifting Equipment Regulations 1998; Management of Health and Safety at Work Regulations 1999; Supply of Machinery (Safety) Regulations 1992 (as amended); Electrical Equipment (Safety) Regulations 1994; Electromagnetic Compatibility Regulations 1992; Simple Pressure Vessels (Safety) Regulations 1991 and Gas Appliances (Safety) Regulations 1995.
Lift-Out Service: the service provided by Moody to remove Item from the Seller's premises to enable the Buyer to collect the Item.
Lift-Out Service Charges: charges payable to Moody by the Buyer for the provision of a Lift-Out Service.
Minimum Reserve Price: the price (if any) agreed between Moody and the Seller as being the reserve price for each Item.
Moody: Moody Auctions Limited (CRN: 04055963) whose registered office is at Unit 5 London Road Business Park, Retford, Nottinghamshire DN22 6HG.
Net Sale Proceeds: the net amount payable by Moody to the Seller being the Total Amount Due less the aggregate amount of the Seller’s Commission, the Buyer’s Premium, any Lift-Out Service Charges (if applicable) and any costs, charges, interest, expenses and any other amounts due to Moody from the Seller provided that such costs, charges, interest, expenses and any other amounts have been agreed in writing with the Seller.
Seller: the company, firm, body or person offering the Equipment for sale by an auction or private treaty conducted by Moody.
Seller's Commission: commission at the rate agreed between Moody and the Seller to be paid by the Seller to Moody for selling the Equipment on the Seller’s behalf.
Stated Rates: any charges associated with the sale of the Equipment as stated in the Catalogue or as indicated by Moody and/or the Auctioneer including but not limited to rates of commission, expenses and costs incurred by Moody which are relevant to such sale.
Technical Problems: any problem, error, failure, difficulty, unavailability of service, malfunction, access or other limitation, incompatibility of software, availability of internet connection and/or other act or omission that interrupt or prevent Moody or its nominee from providing an Internet Auction Service.
Total Amount Due: the amount due from the Buyer being the aggregate of the Hammer Price in respect of the Item sold, the Buyer's Premium and any Lift-Out Service Charges (if applicable) plus (in each case) any applicable VAT.
VAT: value added tax chargeable under English law for the time being and any similar tax.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension or re-enactment.
1.3 Words in the singular include the plural and in the plural include the singular. A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF CONDITIONS
2.1 These conditions apply to any auction or private treaty conducted by Moody on behalf of the Seller to the exclusion of all other terms and conditions (including any terms or conditions which the Seller purports to apply), standards, specifications or particulars save as otherwise agreed in writing by Moody.
3. APPOINTMENT
3.1 The Seller appoints Moody, and Moody agrees to act, as agent on behalf of the Seller for the sale of the Equipment at auction or private treaty.
3.2 The Seller authorises Moody to conduct the auction or private treaty as Moody (in its absolute discretion) determines including, but not limited to, the preparation of the Catalogue based on the information supplied by the Seller, the conduct of the auction or private treaty, the use of an Internet Auction Service and the receipt of the monies paid by the Buyer in connection with the purchase of an Item.
3.3 Moody in its absolute discretion can determine the identity of, and appoint, the Auctioneer.
3.4 Moody in its absolute discretion can determine the identity of, and appoint, the provider of the Internet Auction Service (if any).
3.5 The Seller acknowledges and agrees that any Catalogue and/or promotional material used auction or private treaty can include references to Moody and/or the provider of the Internet Auction Service (if any) (including but not limited to name, logo, website link, email contact and promotional statement).
4. WARRANTIES AND PREPARATION FOR SALE
4.1 The Seller warrants to Moody that at all relevant times (including, but not limited to, the date that these conditions take effect, the time that the Seller provides the information to Moody for the Catalogue to be produced and the time of the sale of the Equipment):
(a) the Seller is the legal and beneficial owner of the Equipment (or is properly authorised to sell the Equipment by the legal and beneficial owner);
(b) the Seller has good marketable title to the Equipment free from any third party rights or claims or potential claims;
(c) there are no restrictions, encumbrances or otherwise, relating to the Equipment (other than those imposed by law) and there are no restriction on Moody to sell the Equipment on the Seller’s behalf;
(d) the Seller is able to and shall, in accordance with these conditions and/or the Buyer’s Terms, transfer ownership of the Item with full title guarantee to the relevant Buyer;
(e) the Seller is able to and shall, in accordance with these conditions and/or the Buyer’s Terms but subject to condition 4.8 of the Buyer’s Terms, give possession of the Item to the relevant Buyer;
(f) the Seller has provided Moody with all information necessary concerning the Equipment in order that Moody can accurately prepare the Catalogue;
(g) the Seller is not aware of any matter or allegation which would render any information given to Moody in relation to the Equipment being inaccurate, incomplete or misleading and the Seller has notified Moody in writing of any concerns expressed by third parties in relation to the ownership or condition of any Item;
(h) the Seller has carried out all appropriate steps to ensure that the Equipment fully complies with all Legislation and the Equipment has been maintained in a safe condition (except as otherwise notified by the Seller in writing to Moody) and the Seller acknowledges it is under a duty to Moody and the Auctioneer to ensure that the Equipment is safe and complies with all Legislation;
(i) the Seller is liable to pay and has or will pay any and all taxes and/or duties that may be due on the Net Sale Proceeds;
(j) the Seller has notified Moody in writing of any or all taxes for duties that are payable by Moody on the Seller's behalf in any country other than the country of the sale
and the Seller shall fully indemnify Moody for any losses, damages, costs and expenses incurred by Moody due to any failure by the Seller to observe its obligations in this condition 4.1.
4.2 Where possible the Seller shall provide all current manuals, drawings, diagrams, service and maintenance records and other records which are necessary to allow:
(a) Moody to provide the Lift-Out Service; and
(b) the proper installation, use and operation of an Item by the Buyer.
4.3 Where Moody is required to provide the Lift-Out Service and/or otherwise provide services in connection with the preparation and/or removal of the Equipment (such service to be agreed in writing between Moody and the Seller) the Seller shall:
(a) ensure that adequate and safe access and protection (in accordance with any Legislation) is provided to Moody, its agents or subcontractors at all times; and
(b) make available at the premises free of charge such supplies of electricity, water, gas, air and other services as may be required by Moody to provide the Lift-Out Service and/or otherwise provide services in connection with the preparation and/or removal of the Equipment.
4.4 The Seller acknowledges that Moody and its agents are not responsible for:
(a) any errors in relation to the authorship, attribution, genuineness, origin, date, age, provenance, condition, quality, suitability, fitness for purpose and capability of an Item; or
(b) any errors of descriptions (including but not limited to any inaccuracy or any incompleteness) of any Item in the Catalogue.
5. WITHDRAWAL OF ITEMS AND RESERVES
5.1 Moody may withdraw an Item from the sale prior to the Item being Knocked Down without any liability to the Seller if:
(a) it is established or alleged that any of the Seller's warranties set out in condition 4 are incorrect, inaccurate or incomplete in any way;
(b) the Item suffers from loss or damage so that it is not in the state in which it was when Moody agreed to sell it; or
(c) the auction or private treaty at which it was proposed to sell the Item is postponed for any reason.
5.2 The Seller shall be entitled, at any time prior to the date of the auction or private treaty, place a Minimum Reserve Price on any Item. Once the Minimum Reserve Price has been set by the Seller, it shall not be changed without the prior written consent of Moody provided always that (and subject to condition 5.3) Moody reserves the right to place a Minimum Reserve Price on any Item at any time.
5.3 Moody may at its absolute discretion sell the Item at a price below the Minimum Reserve Price but in any such case the Net Sale Proceeds to which the Seller is entitled shall be based on amount equivalent to the Item being sold at the Minimum Reserve Price.
5.4 Moody, the Seller or any agent of the Seller may place bids in respect of an Item on behalf of the Seller up to the Minimum Reserve Price. Neither the Seller nor any agent of the Seller may place a bid on any Item which is higher than the Minimum Reserve Price.
5.5 Subject to condition 5.2 the Equipment may be put up for sale without reserve unless Moody is otherwise notified in writing by the Seller.
6. OFFERS AND KNOCK DOWN
6.1 Moody shall conduct any auction or private treaty in any way that Moody (in its absolute discretion) determines.
6.2 The Auctioneer and/or Moody shall have the right to refuse, without giving any reason, any offer from a potential Buyer for an Item. Any dispute as to any offer shall be settled at Moody’s absolute discretion. If requested by Moody, the Auctioneer has the right to determine any dispute with immediate effect and where appropriate, put up the Item again at the last undisputed bid or withdraw the Item.
6.3 At the time the Item is Knocked Down the Seller enters into a contract with the Buyer to purchase that Item on the relevant conditions set out in the Buyer’s Terms.
7. RISK AND OWNERSHIP
7.1 The Seller is responsible for insuring each Item up to the time the Item has been Knocked Down.
7.2 The Buyer is responsible for insuring any Item purchased from the time that the Item is Knocked Down.
7.3 Subject to conditions 8.3 and 10.6 after the Item has been Knocked Down, Moody, the Seller and their agents shall not be responsible for any loss or damage incurred of any kind, whether caused by negligence or otherwise, while the Item is under the custody or control of Moody or the Seller.
7.4 Ownership of the Item purchased shall not pass to the Buyer until the Buyer has made payment in full to Moody of the Total Amount Due together with any storage costs, interest, charges and expenses due under these conditions.
8. COLLECTION AND LIFT-OUT SERVICES
8.1 On the date that the Item is Knocked Down or the date Moody provides a Lift-Out Service, unless otherwise agreed by Moody in writing, the Buyer shall at its own expense collect (including transportation) the Item from the Seller’s premises.
8.2 A Lift-Out Service may be required to remove an Item. Any Lift-Out Services Charges will be set out in the Catalogue or agreed between Moody and the Buyer.
8.3 The timings and date of any Lift-Out Services provided by Moody are at the absolute discretion of Moody.
8.4 In circumstances where Moody provides a Lift-Out Service, subject to conditions 10.4 and 10.5 Moody shall be liable for damage caused to the Item during the Lift-Out Service.
9. NET SALE PROCEEDS AND PAYMENT
9.1 The Seller authorises Moody to receive from the Buyer the Total Amount Due from the sale of each Item (together with any storage costs, interest, charges and expenses due under the Buyer’s Terms).
9.2 Following the sale of an Item, the Seller will be liable to pay Moody the following sums in connection with such sale:
(a) the Seller's Commission; and
(b) all costs, charges, interest, expenses and any other amounts due to Moody from the Seller provided that such costs, charges, interest, expenses and any other amounts have been agreed in writing with the Seller.
9.3 Following the sale of an Item, Moody shall be entitled to retain from monies paid by a Buyer to Moody the following sums:
(a) the Seller's Commission;
(b) the Buyer’s Premium;
(c) any Lift-Out Service Charges (if applicable);
(d) all costs, interest, charges and expenses incurred by Moody in carrying out its obligations under these conditions which have been agreed with the Seller in writing in advance; and
(e) any amounts due to Moody pursuant to condition 9.7.
9.4 Moody shall pay the Net Sale Proceeds to the Seller as follows:
(a) where all monies in relation to the Total Amount Due are received by Moody from the Buyer for the Item, within 35 days after the date of the auction or private treaty; or
(b) where all monies in relation to the Total Amount Due are not received by Moody from the Buyer for the Item, within 7 days after the date on which all monies are received by Moody from the Buyer.
9.5 All payments due from Moody to the Seller shall be in pounds sterling and by way of cheque (unless, in each case, otherwise agreed in writing by Moody and the Seller). A finance charge will be made by Moody for each payment to a Seller in any form other than a cheque.
9.6 The Seller acknowledges that Moody is under no obligation to enforce payment of any monies due from a Buyer nor to undertake legal proceedings to recover such payment. The Seller shall notify Moody in writing (prior to any such action being taken) of any action which the Seller chooses to take against the Buyer to enforce payment of any monies due from a Buyer.
9.7 Where the Seller instructs Moody to recover any Item from a Buyer and/or pursue payment of the Total Amount Due from the Buyer the Seller shall fully indemnify Moody for any losses, damages, costs and expenses incurred by Moody in connection with such recovery or pursuit.
9.8 The Seller shall make all payments due under these conditions in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Seller has a valid court order requiring an amount equal to such deduction to be paid by Moody to the Seller.
10. LIMITATION OF LIABILITY - The Seller's Attention Is Particularly Drawn To This Condition
10.1 The following provisions set out the entire liability (i) of Moody to the Seller and (ii) of the Seller to Moody (including any liability for the acts or omissions of their employees, agents and sub-contractors) in respect of:
(a) any breach of these conditions; and
(b) any representation, statement or tortious act or omission including negligence arising under or in connection with these conditions.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these conditions.
10.3 Nothing in these conditions excludes or limits the liability of Moody and the Seller:
(a) for death or personal injury caused by (as the case may be) Moody’s or the Seller's negligence;
(b) for any matter which it would be illegal for Moody or the Seller to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation by (as the case may be) Moody or the Seller.
10.4 Moody shall accept liability to the Seller in respect of damage to the tangible property of the Seller resulting from the negligence of Moody or its agents or sub‑contractors up to a maximum amount of £10 million for each event or series of connected events.
The Seller's attention is in particular drawn to the provisions of conditions 10.5 and 10.6.
10.5 Subject to conditions 10.2 - 10.4 (inclusive):
(a) Moody’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these conditions shall be limited to the aggregate amount of the Seller’s Commission and any monies paid pursuant to condition 9.2(b) (if any); and
(b) Moody shall not be liable to the Seller in the event that the Seller failed to notify Moody in writing before the auction that the Equipment being sold at auction should have been sold by private treaty nor for any (i) pure economic loss, (ii) loss of profit, (iii) anticipated savings, (iv) loss of business (v) depletion of goodwill or (vi) similar loss in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with these conditions.
10.6 The Seller acknowledges and agrees that there may be Technical Problems that interrupt or prevent Moody (or its nominee contracted to provide the Internet Auction Service) from providing an Internet Auction Service (including but not limited to matters occurring during the bidding process for an Item) and the Seller acknowledges and agrees that in the event that there is a Technical Problem Moody (or its nominee contracted to provide the Internet Auction Service) shall not be liable to the Seller for any (i) pure economic loss, (ii) loss of profit, (iii) anticipated savings, (iv) loss of business (v) depletion of goodwill or (vi) similar loss in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with a Technical Problem.
11. CONFIDENTIALITY
11.1 Each party to these conditions undertakes to the other party to keep confidential all information (written or oral) concerning the business and affairs of the other party which it has obtained or received as a result of discussions leading up to the entering into of these conditions or which it has obtained during the course of these conditions except any information which is:
(a) trivial or obvious;
(b) already in its possession other than as a result of a breach of this condition;
(c) in the public domain other than as a result of a breach of this condition; and
(d) as may be required to be disclosed by any law, court order or any governmental or regulatory authority
11.2 Each party undertakes to the other party to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this condition 13 by its employees, agents and subcontractors.
12. TERMINATION
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate these conditions immediately on giving notice to the other party if:
(a) the other party fails to pay any amount due under these conditions on the due date for payment;
(b) the other party commits a material breach of any of these conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(c) the other party has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the other party or for the granting of an administration order in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party;
(d) the other party suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this condition 12.1; or
(g) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
12.2 On termination of these conditions for any reason the accrued rights and liabilities of the parties as at termination shall not be affected the following conditions shall survive and continue in full force and effect:
(a) condition 10;
(b) condition 11;
(c) condition 12; and
(d) condition 14.
13. FORCE MAJEURE
13.1 No party shall be liable to the other party if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes or accidental or malicious damage. A party claiming to be unable to perform its obligations under these conditions (either on time or at all) in any of the circumstances set out in this condition must immediately notify the other party of the nature and extent of the circumstances in question.
14. GENERAL
14.1 These conditions constitute the whole agreement between the parties in relation to its subject matter and supersede all previous agreements between the parties relating to its subject matter.
14.2 No variation of these conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
14.3 If any provision of these conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the these conditions and the remainder of such provision shall continue in full force and effect.
14.4 Failure or delay by any party in enforcing or partially enforcing any provision of these conditions shall not be construed as a waiver of any of its rights under these conditions.
14.5 Any waiver by any party of any breach of, or any default under, any provision of these conditions by another party shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of these conditions.
14.6 The Seller shall not be entitled to assign, transfer or charge these conditions (or part of them) or any right under them without the prior written consent of Moody.
14.7 These conditions are made for the benefit of the parties and are not intended to benefit, or be enforceable by, anyone else. The Contracts (Rights of Third Parties) Act 1999 shall not apply to these conditions.
14.8 All communications between the parties under these conditions shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax to its registered office or last known fax number and communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
14.9 Nothing in these conditions shall create, or be deemed to create, a partnership between the parties.
14.10 The formation, existence, construction, performance, validity and all aspects of these conditions shall be governed by English law and the parties submit to the jurisdiction of the English courts.