The auctions of artworks, etc. conducted by Mallet Japan Inc. (hereinafter referred to as the “Company”) under the name of Mallet Auction or otherwise shall be in compliance with these Rules. Any and all persons consigning property for sale, persons desiring to purchase properties, persons concluding sales agreements with the Company, and any other persons involved shall accept and obey these terms described below; provided, however, that if any other separate agreement exists between the Company and any such person, such agreement shall prevail.
The Company shall host auctions for the sale of artworks consigned for sale (hereinafter referred to as the “Property” or “Properties”) by way of auction.
As the Properties are inherently old, they shall be sold “as is” and the Company shall not be liable for any spots, blemishes, or any other defects or damages caused due to the aging of the Properties.
In the event the successful bidder fails to pay the Purchase Price, etc. in full by the due date, he/she shall comply with the following provisions.
-
(1)If the name of an artist of a Property is definitively specified in the catalogue etc. of the Company without reservation and it is proven at a later date that the artist of the Property may not be identified and the Company acknowledges such fact, the Company may terminate the sales agreement upon demand by the successful bidder and refund the Purchase Price in exchange for the return of such Property, provided that the successful bidder fulfills the conditions referred to in each of the following provisions; provided further, however, that the Company shall assume no responsibility other than refund of the Purchase Price and shall not pay any interest, damage, or compensation to the successful bidder.
- i)Only if the successful bidder sends a written demand to the Company indicating the date of the auction, the lot number of the Property, and the Hammer Price, together with any evidence by which the Company may be satisfied that such Property is not a work of the artist as described in the catalogue etc., within three (3) years after the date of the auction. Persons who may make such demand shall be limited to successful bidders, and the rights of successful bidders to make such demand may not be assigned or offered as security to third parties.
- ii)Only if the successful bidder has the complete ownership of the purchased property and transfers the complete title to the purchased property to the Company and delivers the purchased property to the Company in a condition identical to that at the time of the auction.
-
(2)The Company shall only recognize the authentication of a Property (designation of the authenticity or inauthenticity) under the following conditions:
- i)with respect to the work of a deceased artist: only if authenticated by any authentication committee, any registration committee of a professional arts association designated by the Company, any designated appraiser, or any professional art researcher;
- ii)with respect to the work of a living artist: only if authenticated by the artist in question, an agent of authentication approved by the artist, or any relative designated by laws;
- iii)with respect to the prints of a deceased artist: only if verified with the Catalogue Raisonne, the relevant book, or the relevant exhibition catalogue; or
- iv)with respect to the prints of a living artist: only if verified with the Catalogue Raisonne, the relevant book, or the exhibition catalogue, or only if authenticated based on any opinion of the artist in question, an agent of authentication approved by the artist, or any relative designated by law.
In each of the paragraphs above, if any opinion of the aforesaid authenticators with respect to the authenticity of a Property is changed after the publication of the descriptions of the Property in the catalogue etc., or if any opinion with respect to the authenticity of a Property is changed as a result of any scientific inspection other than the inspections used for the authentications referred to in the preceding paragraphs, or by any method of examination or analysis which was not available at the time of the relevant auction, the Property shall not be subject to the termination of the sales agreement and the Company shall have no responsibility incidental to such change in opinions. If it is deemed impossible to inspect or verify any print Property with the Catalogue Raisonne (because the Catalogue Raisonne is not published, the relevant Property is not illustrated therein or unclear, or data is incomplete or has any misprints), the Company's opinion shall be deemed to be the final judgment.
Chapter IV Procedures for Overseas Prospective Buyers
17 Pre-auction Viewing and Catalogue
The Overseas Prospective Buyer, as well as the prospective buyer in Japan, may participate in the pre-auction viewing in accordance with the provision of 3 and purchase a catalogue by paying its cost to the Company in accordance with the provision of 4. The Company will also, in accordance with the provision of 4, provide condition reports considered necessary for the Overseas Prospective Buyer.
18 Entrustment and Purchase Agreement
- (1)The Overseas Prospective Buyer shall, prior to the auction, execute the Entrustment and Purchase Agreement with Mallet International, the entrustee designated by the Company.
- (2)The Entrustment and Purchase Agreement shall be applied for in either written form using a document prepared under the format designated by Mallet International, or by sending and submitting the prescribed form on Mallet International’s website. Mallet International may, prior to the execution of such Agreement, ask the Overseas Prospective Buyer to present materials to show his/her identification and credibility and implement a check of credibility based on the presented materials and any other information.
- (3)The Entrustment and Purchase Agreement will become effective once the aforementioned application has been received by Mallet International (via facsimile, post or electronic mail or other such method) in addition to being issued with a notice from Mallet International acknowledging the approval of such application.
- (4)The Overseas Prospective Buyer shall provide Mallet International with instructions in writing, online or by telephone under the Entrustment and Purchase Agreement.
- (5)If the Overseas Prospective Buyer provides instructions in writing, the item of his/her desire and his/her intended bid price (indicated bid price) shall be notified to Mallet International by sending by facsimile or mail a document prepared under the format designated by Mallet International (hereinafter referred to as the ”Indication of Intended Bid”) not later than one (1) business day prior to the date of the auction. The Overseas Prospective Buyer who has executed The Entrustment and Purchase Agreement as pursuant to the provisions set forth in paragraph (2) of this Article, may indicate an intended bid online by sending and submitting the prescribed form on Mallet International’s website. If the Overseas Prospective Buyer provides instructions online no later than one (1) business day prior to the date of the auction, accesses Mallet International’s website from an online account issued by Mallet International, inputs and submits the necessary matters in the prescribed form, thereby notifying the item of his/her desire and his/her intended bid price (indicated bid price), they may convert such instructions into an Indication of Intended Bid. Any Overseas Prospective Buyer who provides an Indication of Intended Bid either in writing or online, shall not include the amount of the prescribed Buyer’s Premium and any other costs and expenses payable to Mallet International, nor include any other costs and expenses payable to Mallet International by the Overseas Buyer within the indicated bid price, and the Overseas Prospective Buyer shall obtain the approval and follow the instructions of Mallet International; provided, however, that if such Indication of Intended Bid fails to arrive or arrives after the application deadline due to erratic delivery, technical difficulty or otherwise, or if Mallet International cannot recognize such an Indication of Intended Bid, Mallet International shall deem such an Indication of Intended Bid as not made and Mallet International shall assume no responsibility; provided further that Mallet International may refuse the Indication of Intended Bid of any person who provides instructions in writing or online at its own discretion.
- (6)If the indicated bid price by more than one Overseas Prospective Buyer are the same, the Indication of Intended Bid which arrives at Mallet International before the others shall prevail; provided that if such Indications arrive at the same time, Mallet International will choose the winner by drawing lots.
- (7)Mallet International shall assume no responsibility for any failures in executing the Indication of Intended Bid due to mistakes or any other reasons.
- (8)If the Overseas Prospective Buyer desires to provide his/her instruction by telephone (telephone bid), the telephone number to be used to provide such instruction shall be notified and the application for providing such instruction by telephone shall be submitted to Mallet International by sending a document prepared under the format designated by Mallet International, or by accessing Mallet International’s website from an online account issued by Mallet International, inputting and submitting the necessary matters in the prescribed form, not later than two (2) business days prior to the date of the auction.
- (9)If the number of the applications submitted for providing instructions by telephone exceeds the number of phone lines available, Mallet International shall decide the Buyers participating with instructions by telephone in order of arrival of the applications; provided that Mallet International may, at its own discretion, refuse to accept such application for participating with instructions by telephone.
- (10)The Company shall not be responsible for any failures with respect to the instructions provided by telephone due to miscommunication over the telephone, trouble with telephone lines or any other reasons.
- (11)If any instruction of the Overseas Prospective Buyer provided in writing, online, or by telephone is incomplete and Mallet International deems it inappropriate, Mallet International may choose not to follow such instruction, and, in such case, shall assume no responsibility therefor.
- (12)If any description or explanation described in the catalogue etc. is changed by the Company, Mallet International shall endeavour to notify the Overseas Prospective Buyer of such changes; provided that Mallet International shall make a bid in accordance with the Indication of Intended Bid or the instruction provided by telephone and shall assume no responsibility due to such changes in the description or explanation described in the catalogue etc. even if the notice of such changes has not reached the Overseas Prospective Buyer in advance.
19 Successful Bid
- (1)A bid by Mallet International shall be made under the provisions of Chapter II in the same way as that of the other prospective buyers and a purchase agreement shall be concluded between the Company and Mallet International when Mallet International wins a bid.
- (2)Subject to the successful bid by Mallet International, the purchase under the Entrustment and Purchase Agreement shall become effective between Mallet International and the Overseas Prospective Buyer. The Overseas Prospective Buyer thereafter shall be hereinafter referred to as the “Overseas Buyer”.
20 Overseas Purchase Price
- (1)Mallet International shall pay to the Company the Purchase Price under the provision of 9 after the successful bid; provided, however, that Mallet International may delay the payment of the Purchase Price to the Company if there is an unavoidable reason notwithstanding the provision of 9-(2). Neither the Company nor the consigner may raise a claim to Mallet International for any interest, damage or compensation for damage.
- (2)The sales price for each Purchased Property payable by the Overseas Buyer to Mallet International as pursuant to the Entrustment and Purchase Agreement, is the sum of the Hammer Price and an additional 16.2 percent of the Hammer Price up to and including 1,000,000 Yen, plus 10.8 percent of any amount exceeding 1,000,000 Yen for each lot (hereinafter referred to as the ”Overseas Purchase Price”).
- (3)The Overseas Buyer shall pay Mallet International the total amount of the Overseas Purchase Price in the preceding paragraph in Japanese Yen within ten (10) days after the date of the auction (if the final day of such period falls on a non business day of Mallet International, the due date shall fall on the following business day instead) in cash or by a bank remittance to the bank account described below (such remittance shall be required to be completed by the due date):
- Account Name: Mallet International Inc.
- Mizuho Bank, Ltd., Yaesuguchi Branch,
- Ordinary account 2580199
21 Delivery of Purchased Property
- (1)After the Overseas Buyer completes payment of the Overseas Purchase Price and the purchased property is delivered by the Company, Mallet International shall take procedures to transport the purchased property to the location designated by the Overseas Buyer without delay; provided, however, that, if such an Overseas Buyer has any obligations due and payable to Mallet International other than the Overseas Purchase Price, including expenses for storage, shipping and insurance set forth in 23, Mallet International may suspend such procedures to transport the purchased property until the Overseas Buyer fulfills all of such obligations as well as the Overseas Purchase Price and the Company delivers the purchased property (the Overseas Purchase Price and any and all obligations due and payable to Mallet International shall hereinafter be referred to as the “Overseas Purchase Price, etc.”).
- (2)Mallet International may pack the purchased property in the manner which it considers appropriate for transportation; provided, however, that Mallet International shall assume no responsibility for such packing. Costs and expenses for such packing shall be borne by the Overseas Buyer and Mallet International shall charge the Overseas Buyer such costs and expenses.
- (3)Mallet International shall arrange for a carrier, import, export and customs procedures, and purchase insurance which it considers appropriate; provided, however, that Mallet International shall assume no responsibility for any accidents, such as loss, theft, damage or defacement, including the propriety of the choice of a carrier, insurance or import, export and customs procedures, at the time of or after the delivery by the Company. Payments to a carrier and costs and expenses to purchase insurance and for import, export and customs procedures shall be borne by the Overseas Buyer and Mallet International shall charge the Overseas Buyer such costs and expenses.
- (4)The Overseas Buyer may inspect the purchased property when picking it up. Once Mallet International delivers the purchased property to the Overseas Buyer (including its agent, representative or carrier), the Overseas Buyer may not raise any claim regarding any mistake, deterioration or defacement with respect to the purchased property, terminate the agreement on the grounds of any mistake, deterioration or defacement with respect to the purchased property, or raise any other claim to Mallet International at and after the time of delivery, unless it is due to the willfulness or gross negligence of Mallet International, regardless of whether the Overseas Buyer has actually inspected the purchased property; provided, however, that if Mallet International delivers any property different from the purchased property by mistake, Mallet International may request its return and the Overseas Buyer shall respond to such a request.
- (5)When the Overseas Buyer picks up the purchased property, he/she shall present to Mallet International an invoice designated by Mallet International. Once Mallet International delivers the purchased property to a person who has submitted the designated invoice, Mallet International shall assume no responsibility for any accident caused when the purchased property is picked up by a person other than the Overseas Buyer.
22 Transfer of Title and Burden of Risk
- (1)The Overseas Buyer shall bear risks of the purchased property on and after the time that a sales agreement with respect to the purchased property becomes effective. (Any disappearance, loss, theft, deterioration or defacement caused for any reason not attributable to Mallet International shall be burdened by the Overseas Buyer and the Overseas Buyer shall not be exempted from payment of the Overseas Purchase Price, etc.)
- (2)The title to the purchased property shall not be transferred to the Overseas Buyer until the Overseas Buyer completes payment of the Overseas Purchase Price, etc. and Mallet International delivers the purchased property to the Overseas Buyer. The title to the purchased property shall be transferred to the Overseas Buyer upon completion of payment of the Overseas Purchase Price, etc. by the Overseas Buyer and delivery of the purchased property by Mallet International.
23 Handling of Stolen or Lost Property
- (1)If any person claiming to be the true owner demands the return of the purchased property as being stolen or lost before delivery thereof by Mallet International to the Overseas Buyer, or if the purchased property is identified as an item whose trade or possession is prohibited by law, Mallet International may terminate the Entrustment and Purchase Agreement without notice to the Overseas Buyer. If Mallet International has received any payment of the Overseas Purchase Price from the Overseas Buyer in such case, Mallet International shall return it free of interest and the Overseas Buyer may not make a claim for damage or any other claims to Mallet International.
- (2)In case any chief of police orders Mallet International to keep hold of the purchased property pursuant to the provisions of Article 21 of the Antique Dealing Law and such holding period exceeds ten (10) days from the day following the date of the auction, the Company shall not deliver the purchased property to the successful bidder until the holding period expires, and the provision of 20-(2) shall apply by changing the wordings of “within ten (10) days from the date of the auction” to “within three (3) days after the final day of the holding period of the property by order of the chief of police,” and the provision of 24 shall apply by changing the wordings of the “payment period” or the “due date” provided for in each provision to the period or date changed pursuant to the above; provided that, if delivery of the purchased property is delayed due to the above, Mallet International shall assume no responsibility for the results caused due to such delay.
24 Defaults by the Overseas Buyer
In the event the Overseas Buyer fails to pay the Overseas Purchase Price, etc. in full by the due date, the following provisions shall be applied:
- i)The Overseas Buyer shall pay a default interest on the remaining amount of the Overseas Purchase Price, etc. at the rate of 14.6% per annum incurred from the day following the due date up to the day of complete payment of such total amount.
- ii)Mallet International shall store the purchased property after expiration of the payment period in any manner which Mallet International deems appropriate at its own discretion. Should the purchased property disappear or be lost, stolen, deteriorated or defaced before delivery to the Overseas Buyer, Mallet International shall assume no responsibility therefor unless it is caused by the willfulness or gross negligence of Mallet International and the Overseas Buyer shall not be exempted from its obligation to pay the Overseas Purchase Price, etc. Mallet International shall not be obliged to purchase insurance for the purchased property during such period.
- iii)In the event that the Overseas Buyer fails to pay the Overseas Purchase Price, etc. as demanded by Mallet International, Mallet International may terminate the Entrustment and Purchase Agreement; provided, however, that, if a notice of demand and termination sent to the address of the Overseas Buyer registered with or notified to Mallet International is returned due to the absence of a recipient or an undeliverable address, or if the Overseas Buyer refuses to receive such notice, Mallet International may terminate the Entrustment and Purchase Agreement upon lapse of the due date specified in such notice even though such notice has not reached the Overseas Buyer, and the Entrustment and Purchase Agreement shall be deemed to be terminated at the time that such notice would normally reach the registered or notified address, and the Overseas Buyer acknowledges the above in advance.
- iv)If the Entrustment and Purchase Agreement is terminated pursuant to the preceding paragraph, Mallet International may sell the purchased property to a third party without setting the Reserve through an auction or private sale. If the price at which such purchased property is sold to the third party is below the Overseas Purchase Price of such purchased property, the Overseas Buyer shall pay to Mallet International the difference with a default interest thereon at the rate of 14.6% per annum for the period from the date of the auction or the date of sales to a third party by private sale up to the complete payment of such a price. If the sales price of such purchased property to a third party exceeds the Overseas Purchase Price thereof, the Overseas Buyer may not demand payment of such difference from Mallet International.
25 Guarantee of Authenticity
Mallet International will refund the purchase price up to the same amount as the Overseas Purchase Price only if the Overseas Purchase Price is refunded by the Company to it; provided, however, that Mallet International shall assume no obligation other than the obligation to refund the Overseas Purchase Price and shall not pay any interest, damage or compensation for damage.
Chapter V Consignments of Auction Sales
26 Consignments of Auction Sales
- (1)Any person who intends to consign the sale of any Property by way of auction under the name of the Company shall apply to the Company for consignment of auction sale in accordance with these rules and the agreement on consignment of sales separately provided by the Company.
- (2)Any person requesting the consignment of sales shall warrant to the Company that he/she has the complete ownership of the consigned Property or the authority to consign the sale of such Property based on the complete ownership of such Property.
- (3)The Company shall not publish the name of the consignor at the auction or in the catalogue etc. without the consent of the consignor.
27 Reserves
- (1)Any person who intends to consign the sale of any Property to the Company may set the Reserve for the sale of the Property; provided that such Reserve shall be denominated in Japanese Yen.
- (2)If the Reserve is set, the Company shall not sell the Property at a price lower than the Reserve without special reason.
- (3)If the Company anticipates that no bidder will make a successful bid at or above the Reserve of the Property, it may, at any time, suggest a change in the Reserve to the consignor and change the Reserve with the consent of the consignor.
- (4)If the consignor does not set any Reserve, the Company may sell the Property without setting the Reserve on the Property.
- (5)The consignor may not change any Reserve that has been set and agreed with the Company, without consent of the Company.
28 Commission Fee
The consignor shall pay the Company the commission fee separately set by the Company and any royalties for copyrights and others, meaning the actual amounts of royalties for copyrights and any costs and expenses to be paid by Mallet Japan to authors in inserting images of the Properties in the catalogue etc., and any consumption taxes on them, regardless of whether the consigned Property has been successfully sold or not.
29 Termination
- (1)In the event the Company judges that the consigned Property is inappropriate for auction and/or the consignor does not follow instructions of the Company, the Company may refuse an application for a sales consignment agreement or terminate a sales consignment agreement already in effect.
- (2)A consignor may not terminate a sales consignment agreement after execution of such agreement with the Company; provided, however, that if the Company consents to such termination and the consignor compensates for damages in the amount separately determined by the Company, the consignor may terminate the sales consignment agreement.
- (3)If the Company has already received the consigned Property upon termination of the sales consignment agreement, the Company may return such consigned Property at the expense and risk of the consignor.
30 Notice of Sales
When the consigned Property is sold at an auction, the Company shall notify the consignor to that effect without delay.
31 Payment
Unless otherwise agreed by both parties, the Company shall make payment to the consignor in an amount calculated by subtracting the Commission Fee, consumption tax thereon, catalogue etc. illustration fee, insurance premium, and any other expenses (such as costs for restoration and authentication) from the Hammer Price twenty (20) days after the date of the auction; provided, however, that if the payment of the Purchase Price, etc. from the successful bidder to the Company is delayed, the Company may delay its payment to the consignor until the Company confirms payment from the successful bidder. In case of such delay in payment from the Company to the consignor, the consignor shall not demand any interest or compensation for damage from the Company.
Chapter VI Other Miscellaneous Provisions
32 Amendment to Rules
The Company may amend any of these Conditions of Sale without notice. Such amendment shall be made orally or in writing (including within the catalogue etc.) by the auctioneer by the date of the auction, or by the posting of a notice of amendment at the auction site or pre-auction viewing, and shall become effective immediately.
33 Scope of Responsibilities
- (1)If the terms described in these Conditions of Sale provide that the Company assumes no responsibility, neither the Company nor Mallet International shall be obliged to compensate for damages for any reason.
- (2)Neither the Company nor Mallet International shall be obliged to compensate for damages if such damages are caused due to any unexpected contingency such as a natural disaster, act of providence, war or civil war.
- (3)If the Company is responsible for storage of the purchased property for a successful bidder and the purchased property disappears or is lost, stolen, damaged, deteriorated, defaced, or worn by the willfulness or negligence of the Company and the provisions of the preceding paragraphs do not apply, the Company shall comply with the following provisions in relation with the successful bidder:
- i)If any purchased property disappears or is lost, stolen, damaged, materially deteriorated, defaced, or worn, the sales agreement between the Company and the successful bidder shall be terminated and the successful bidder shall be exempted from payment of the Purchase Price. If the Company has already received payment of the Purchase Price in such case, the Company shall return it to the successful bidder free of interest.
- ii)If the damage, deterioration, defacement, or wear of the property is not deemed to be material, the Company shall subtract the portion of the damage calculated as equivalent to such damage, deterioration, defacement, or wear from the Purchase Price.
- iii)The successful bidder shall be responsible for verifying whether or not any damage, deterioration, defacement or wear exists, the degree thereof, and the calculated amount of the damage.
- iv)The Company shall not be responsible for any loss, damage, disappearance, deterioration, defacement, wear, etc. of any accessories which do not essentially relate to the evaluation of the relevant purchased property (such as frames, mountings, glass, acrylic, and outer cases) unless such damage is caused by the willfulness or gross negligence of the Company.
- v)The amount of compensation for damages paid by the Company pursuant to the provisions hereof shall be limited to the extent of insurance money paid under the contract of insurance against the loss made between the Company and any nonlife insurer.
- (4)If Mallet International has an obligation to keep the purchased property for the Overseas Buyer, the provision of the preceding paragraph shall apply by changing the wordings of the “Company” to “Mallet International”, the “successful bidder” to the “Overseas Buyer”, “Purchase Price” to “Overseas Purchase Price” and the “sales agreement” to the “Entrustment and Purchase Agreement” respectively.
- (5)Neither the Company nor Mallet International shall be obliged to compensate for damages other than those provided for in each item of paragraph (3) of this Article, unless such damages are caused by willfulness or gross negligence. Even if such damages are caused by willfulness or gross negligence, the scope of compensation for damages shall be limited to ordinary damages and the scope predictable at the time of occurrence of such willfulness or gross negligence.
34 Prohibition of Assignment of Obligations
Successful bidders, Overseas Buyers, consignors and any other related parties may not transfer, assign or offer as security their rights or positions with respect to the Company or Mallet International under these Conditions of Sale to a third party.
35 Governing Law
These Conditions of Sale shall be governed by and construed in accordance with the laws of Japan, and any matter not stipulated herein shall be settled in accordance with the laws of Japan.
36 Jurisdiction
With respect to any and all disputes arising out of these Conditions of Sale, the parties hereto shall submit to the exclusive jurisdiction of the Tokyo District Court or the Tokyo Summary Court of Japan.