Shibunkaku Co., Ltd. (the “Company”) establishes these Terms and Conditions for the purpose of properly and smoothly running this Website operated by the Company (https://sale.shibunkaku.com/) (this “Site”) and ensuring a pleasant experience when you use the services on this Site.
When using this Site, please carefully review these Terms and Conditions as well as the Shibunkaku Sale Terms and Conditions and the Consignment Agreement.
If you use this Site, you will be deemed to have agreed to the contents of these Terms and Conditions as well as the Shibunkaku Sale Terms and Conditions and the Consignment Agreement.
When using this Site, you will comply with the contents of these Terms and Conditions as well as the Shibunkaku Sale Terms and Conditions and the Consignment Agreement.
In the event that you breach the contents of these Terms and Conditions, the Shibunkaku Sale Terms and Conditions, or the Consignment Agreement, the Company may suspend your transactions and disallow any subsequent use.
Individual provisions may be established for the use of each service on this Site.
In such case, you will be required to agree to each of these provisions before using the service.
Each of the following conduct is prohibited with respect to the use of this Site:
The Company may wholly or partially restrict your use of this Site or cancel your registration as a member without prior notice in any of the following cases:
The Sale (bidding) for works of art, antiques, and other items to be held by Shibunkaku Co., Ltd. (the “Company”) under the name of Shibunkaku Sale will be held in accordance with these Terms and Conditions. Persons who request a listing on, and consign for sale at, the Company’s Sale, persons who seek to bid on, or request the purchase of, sale items, persons who have entered into a sales contract with the Company, and all other relevant parties shall comply with and approve, and be subject to, these Terms and Conditions, provided that if otherwise agreed with the Company, such agreement shall prevail as between the Company and the person who entered into such agreement.
(1) Items that have undergone a review approved by the Company (such object is referred to as the “Listed Item(s)”) will be consigned to be sold by the Company, and the Company will offer for sale and sell the Listed Items in the name of the Company through an sale. The Listed Items will generally be works of art and antiques.
(2) The Listed Items must always undergo the Company’s review in accordance with these Terms and Conditions, and the Company may reject the consignment for sale at its own discretion. In the event that any Listed Item is located outside of Japan and the Listed Item uses ivory, rhinoceros horn, coral, tortoiseshell, or any other animal or plant whose export or import is restricted by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington Convention), the Company shall reject the consignment for sale on such Listed Item.
The Listed Items, due to the nature of works of art, antiques, and the like, are almost always old items rather than new items, and thus it is common practice for them to be sold “as is”, and a prospective bidder will have the duty to examine the condition of the Listed Items (including all defects and flaws), such as inspecting and checking the Listed Items at the preview event set forth in Article 5, and shall make a bid request at the full responsibility and judgment of the prospective bidder. The Company shall have no liability for any condition of the Listed Items, such as stains, scratches, and other damage, defects, and flaws on or in the Listed Items, and shall have no liability for any non-conformity with contract.
(1) A catalogue of the Company’s Listed Items will be created and distributed, for a fee, for the reference of the prospective bidders.
(2) A catalogue includes illustrations of the Listed Items, the purpose of which is to announce the information and form of the Listed Items, and does not accurately represent the color, form, and other detailed condition of the Listed Items, and the Company shall have no liability for any discrepancy between the illustrations shown in the catalogue and the actual items.
(3) The information regarding the Listed Items published in the catalogue (name of the creator, title, materials, restoration, signature, size, year of creation, place of creation, appraisal, provenance, literature, etc.) has been investigated with the care that is considered to be appropriate by the Company, but it is only for the reference of the prospective bidders, and a prospective bidder will have the duty to examine the published information and shall place a bid at its own responsibility and judgment, such as inspecting and checking the Listed Items at the preview event set forth in Article 5. The Company shall have no liability with respect to any errors in such published information or any differences from the actual item except in the cases set forth in Article 16.
(4) The Company will state the reserve price of the Listed Item in the catalogue in Japanese Yen for the reference of the prospective bidders. The reserve price does not include the Company’s commission, consumption tax thereon, and other related expenses and merely states the price that is considered to be appropriate by the Company based on the current market trends and other factors, and there naturally will be cases where such price will be exceeded through a sale by bidding, provided that the Listed Item shall not be sold at a price below the reserve price set forth in Article 18.
(1) Information stated in the catalogue may be modified without notice. Such modification will be posted in writing at the venue for sale or announced orally, by email, by posting on the Company’s website, or any other means that the Company deem reasonable,. Such modification is also only for the reference of the prospective bidders. If a modification is made, the sale by bidding will be deemed to have been made according to the modified information, but judgment regarding the modified information will be made at the full responsibility of the prospective bidders in accordance with paragraph (3) of Article 3.
(2) The Listed Items published in the catalogue may be withdrawn without notice at the Company’s judgment. Such withdrawal will be posted in writing at the venue for sale by bidding or announced orally, by email, by posting on the Company’s website, or any other means that the Company deem reasonable. Bid applications for the withdrawn items will be void regardless of whether such applications were submitted before or after the withdrawal.
(1) The Company will hold a preview event prior to the sale and exhibit the Listed Items to the prospective bidders.
(2) If a person wishes to be admitted to a preview event, the Company may request such person to provide his/her name and otherwise prove his/her identity, and the person so requested must present documents proving the person’s identity and credibility (hereinafter referred to as the “IDs”). The Company may, at its full discretion, reject admission into a preview event without providing any reason.
(3) A prospective bidder may inspect and examine the Listed Items at a preview event, provided that it may not make direct or indirect bodily or other contact with the Listed Items except when approved by the Company. A prospective bidder must check the condition of the Listed Items (including all defects and flaws) and make a bid offer at its own judgment and responsibility.
(4) The schedule of the preview event will generally be stated in the catalogue, provided that the schedule of the preview event may be modified at the Company’s own discretion and such modification will be posted in writing or announced orally, by email, by posting on the Company’s website, or any other means that the Company deem reasonable, and the Company shall have no liability in connection with such modification.
(1) Sales will be made by bidding through the bid application forms specified by the Company set forth in paragraph (3) of this Article.
(2) Bids will be accepted at the venue of the preview event, by mail or fax to the Sale administration office designated by the Company, or through the dedicated bid application form set up on the Company’s website. Bid applicants will not be accepted by phone or email. Each of the provisions in Article 7 below shall apply to the bid acceptance.
(3) The bid application forms specified by the Company come in the following 3 types:
1. “Bid application form” placed at the venue of the preview event
2. “Bid application form” in the catalogue
3. Dedicated bid application form set up on the Company’s website
(1) Prospective bidders must submit a bid application form set forth in paragraph (3) of Article 5, filled out with all of the information listed below, at the reception of the venue of the preview event or by sending or transmitting to the Sale administration office designated by the Company by the date and time specified by the Company. Bid application forms that are submitted after the prescribed deadline or missing any of the information listed below will be void.
* Name of the prospective bidder (if it is a legal entity, name of the legal entity and its representative)
* Address
* Phone number (number where the prospective bidder is reachable at all times)
* Catalogue Listed Item number
* Desired bid price
* Signature or name and seal
(2) Bids at less than the reserve price will be void.
(3) If the Company determines that a bidder has placed a bid without true intent to win the bid, the Company may cancel such bid.
(4) After the bid opening, sales negotiation at less than the reserve price generally will not be accepted for an item for which the reserve price was not met. However, if the seller approves sales negotiation at less than the reserve price, there are cases where such negotiation will be accepted.
(5) Any solicitation of a sale by a third party to the successful bidder will not be accepted.
(6) Bids that arrive at the Company by the date and time specified by the Company will be valid. The Company shall have no liability for any problems due to a mailing accident, fax malfunction, or network failure and any damages suffered by the prospective bidders that arise when sending or transmitting the bid application form.
(7) When accepting bids, the Company may request a prospective bidder to present the IDs and may check the credibility of the prospective bidder based on the IDs presented and other information, and a prospective bidder may not be able to participate in the bidding if he/she does not present such IDs or the Company determine as a result of the credibility check that the prospective bidder is inappropriate.
(8) If the Company determines that a bidder has submitted a bid application using the personal information of a third party or false information, the Company may cancel such bid.
(9) Pursuant to the Personal Information Protection Act of Japan, the Company will strictly manage the information submitted by prospective bidders and use such information for the sending of catalogues and other items published by the Company, provision of the Company’s product information and various announcements, analysis of the customer base, and future product planning, and not for any other purpose.
(10) Notwithstanding anything herein to the contrary, prospective bidders acknowledge that if a successful bidder's work consists of ivory, rhinoceros horn, coral, tortoiseshell, or any other animal or plant whose export or import is restricted by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington Convention), the successful bidder may not take such winning bid item out of Japan.
(1) The bid opening will be commenced on the day after the deadline and each item will be won by the highest bid price. After the hammer price has been decided, it will be reported to the successful bidder and the bidders by mail, email, or by posting on the Company’s website and an invoice and receipt for the winning bid item will be provided to the successful bidder by mail, email, or by posting on the Company’s website. (non-public bid opening)
(2) If there are multiple bids at the highest bid price, the bid that was received at the earliest time will have priority. The time of receipt of a bid sent by mail or fax is the date and time it arrived at the Company, and that of a bid using the dedicated bid application form is the time when the Company’s server receives the information pertaining to the bid.
The successful bidder shall pay to the Company the hammer price and, as the Company’s commission, if the hammer price is up to JPY 1,000,000, the sum of the amount equal to twenty percent (20%) of the hammer price and the consumption tax on such commission, and if the hammer price exceeds JPY 1,000,000, the sum of twenty percent (20%) of the hammer price up to JPY 1,000,000 and fifteen percent (15%) of the portion exceeding JPY 1,000,000 and the consumption tax on such commission (the hammer price and the commission and consumption tax thereon is referred to as the “Purchase Price”).
Within ten (10) days after the bid opening date (provided that if the last day of such period is a non-business day of the Company (non-business days of the Company are undefined), by the next day (if several consecutive non-business days follow the last day of such period, the next day after the last non-business day out of such consecutive non-business days) (such period is referred to as the “Payment Period”); only during the Company’s business hours on each day of such period), the successful bidder shall pay to the Company the amount of the Purchase Price in Japanese Yen in cash, by remittance to the account set forth below (the remittance must arrive within the Payment Period), or by credit card in the name of the successful bidder and issued by a credit card company approved by the Company. All bank fees for the remittance shall be borne by the successful bidder. If payment is made by credit card, such payment shall be subject to the terms separately agreed between the Company and the credit card company. In the event that any dispute arises between the successful bidder and the credit company or others, such parties shall mutually resolve such dispute and the Company shall have no liability for such dispute.
Bank accounts:
Resona Bank, Limited, Kyoto Branch, Checking, 500363
Sumitomo Mitsui Banking Corporation, Shijo Branch, Checking, 237425
MUFG Bank, Kyoto Branch, Checking, 165892
(1) After the successful bidder completes the payment of the Purchase Price and the Company completes the confirmation of such payment, the Company shall deliver the winning bid item to the successful bidder. At that time, the successful bidder shall bring the receipt for the winning bid item under Article 8, and it is sufficient for the Company to deliver the winning bid item to the person who brings the receipt for the winning bid item.
(2) After the Purchase Price and the like have been paid in full, the successful bidder shall pick up the winning bid item within the Payment Period.
(3) The winning bid item shall generally be delivered to the head office and each branch office of the Company, and the pick-up costs shall be borne by the successful bidder.
(4) The Company shall have no liability for any accident (destruction, loss, theft, damage, defacement) at or after the time of delivery (refers to the time at which the Company delivers the item at the Company to the successful bidder, its agent or messenger, or a carrier; same applies below). If the Company arranges a carrier or perform export customs clearance procedures at the request of the successful bidder, such arrangement or performance will be made entirely as a courtesy by the Company, and the successful bidder shall take measures against risk such as obtaining insurance on its own, and the Company shall have no liability for any accident (destruction, loss, theft, damage, defacement) at or after the time of delivery, including the propriety of the selection of the carrier and the export customs clearance procedures. The successful bidder shall package the item in a manner that it considers to be appropriate at its own judgment, responsibility, and expense. The Company may package the item for delivery in some cases, but it is merely being packaged in the manner considered to be appropriate by the Company as a courtesy, and the Company shall have no liability for the packaging by the Company.
(5) The successful bidder may inspect the winning bid item when picking up the item, but regardless of whether or not the successful bidder actually conducts an inspection, if the Company delivered the winning bid item to the successful bidder (including agent, messenger, and carrier), the successful bidder may not allege against the Company that the winning bid item is wrong or that it is damaged or defaced or terminate the contract or make any other claim against the Company on the grounds that the winning bid item is wrong or that it is damaged or defaced, provided that if the Company mistakenly delivers an item that is different from the winning bid item, the Company may naturally request the return of such item and the successful bidder shall comply with such request.
(6) When picking up the winning bid item, the successful bidder shall submit to the Company the receipt for the winning bid item distributed by the Company. If the Company delivers the winning bid item to the person who brings the receipt for the winning bid item, the Company shall have no liability for any accident, such as the winning bid item being picked up by a person other than the successful bidder.
(7) The Company shall not be liable for any damage that the successful bidder may be suffered, including the fact that the successful bidder may not take the purchased property out of Japan due to restrictions on export or import by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington Convention) or other restrictions by treaty or law.
(1) The successful bidder shall bear the risk of loss with respect to the winning bid item after the formation of a sales contract for the winning bid item (when the bidder is selected as the highest bidder at the time of the bid opening).
(2) Title to the winning bid item will not pass to the successful bidder until the successful bidder has completed the payment of the Purchase Price and the like and the Company has delivered the winning bid item to the successful bidder. Title to the winning bid item will pass to the successful bidder when the successful bidder has paid the Purchase Price and the like in full and the Company has delivered the winning bid item.
If the Company grants an extension of the payment due date of the Purchase Price in writing at the request of the successful bidder, each of the provisions below shall apply, provided that the successful bidder has no right to request an extension of the payment due date of the Purchase Price, and the Company has full discretion as to whether or not the Company will grant an extension of the payment due date to the successful bidder. Any extension of the due date granted by the Company shall be made in writing and no extension of the due date shall be granted through any other method, and all extensions not granted in writing will be void.
1. The successful bidder shall pay interest during the extension period (the interest rate shall be determined by the Company as needed and notified in writing).
2. If the Company grants an extension of the payment due date of the Purchase Price, the phrase “within ten (10) days after the bid opening date” in Article 10 shall be replaced with “by the last day of the extension period.”
3. If the successful bidder is subjected to an attachment, provisional attachment, or provisional disposition by another creditor, makes a payment that is dishonored, stops its payment, files or receives a petition for bankruptcy, civil rehabilitation, or corporate reorganization proceedings, or special liquidation (including similar proceedings in foreign countries), or delays the performance of any obligation owed to the Company, the successful bidder’s obligations shall automatically become immediately due and payable without any demand to cure from the Company.
The Company will perform the prescribed examination of the Listed Items, but if a request to return the winning bid item is made by a person claiming to be the true owner on the grounds that it is a stolen item or lost item before the delivery of the winning bid item to the successful bidder or if it is found that the winning bid item is an item prohibited by law from being sold and purchased (including prohibition of possession), the Company may terminate the sales contract with the successful bidder without any demand to cure. In such case, if the Company has received payment of the Purchase Price from the successful bidder, it shall refund the Purchase Price without any interest and the successful bidder may not make a claim for damages or any other claim against the Company.
(1) If the successful bidder fails to pay the full amount during the Payment Period and, despite the Company’s demand on the successful bidder to pay the Purchase Price and the like, fails to pay within such demand period, the Company may terminate the sales contract. In such case, twenty percent (20%) of the hammer price will be charged as a termination fee.
(2) After the determination of the winning bid, the successful bidder may not cancel even if it requests the Company for a cancellation. However, if a problem actually arises and the Company agrees to cancel, the Company may charge a cancellation fee to the successful bidder. The cancellation fee will be twenty percent (20%) of the hammer price.
(1) If the Listed Item undergoes the prescribed examination by the Company and the name of the creator of the Listed Item is definitively stated in the catalogue without any reservations (excluding cases where it is stated that there is a dispute regarding the creator, that the creator is presumed (e.g., “believed to be by [name]” or “presumed to be by [name]”), or that the creator cannot be identified (e.g., “[name] style,” “[name] studio,” “[name] school”)), and if it is subsequently found that the Listed Item is not the work of such creator (excluding cases where the work was generally recognized to be the work of the creator stated in the catalogue based on the standard of scholars and experts at the time of the sale, where it is found not to be a work of the creator stated in the catalogue through a scientific inspection method that was not common or an inspection method that was extremely expensive at the time of the sale, or where it is found not to be a work of the creator stated in the catalogue through an inspection method that is not typically used, such as damaging the Listed Item, or due to breakage) and the Company can approve such fact, the Company shall, at the request of the successful bidder, terminate the sales contract and refund the Purchase Price in exchange for the return of such item but only in cases where the conditions set forth in paragraphs (2) and (3) of this Article are satisfied. However, in such case, the successful bidder may not claim any interest, charges, damages, or the like other than seeking a refund of the Purchase Price, and the Company shall have no obligation other than refunding the Purchase Price and will not pay any interest, charges, damages, or the like.
(2) In order to terminate the sales contract and make a claim for refund of the Purchase Price pursuant to paragraph (1), the successful bidder must make the claim to the Company in writing specifying the date of the sale, Listed Item number, and the hammer price along with proof that will convince the Company that the Listed Item is not a work of the creator stated in the catalogue within five (5) years after the date of the sale and within three (3) months after the successful bidder found out that the winning bid item is not a work of the creator stated in the catalogue (proof of when it found out must be attached). The only person who can make this claim is the successful bidder (excluding the successful bidder’s general successor and limited successor), and the successful bidder may not assign to a third party or furnish as collateral the right to claim that the Listed Item was not created by the creator stated in the catalogue that is separate from the item itself.
(3) In order to terminate the sales contract and make a claim for refund of the Purchase price pursuant to paragraph (1), the successful bidder must transfer full title to the winning bid item, without any pledge, mortgage or other security interest, claim or other charges restricting ownership (hereinafter referred to as the “Charges”), to the Company and deliver the winning bid item to the Company in the condition it was in at the time of the sale.
(1) A person who wishes to consign the Listed Item for sale by the Company in the name of the Company through the bidding process shall apply for consignment of sale through the bidding process in accordance with these Terms and Conditions and the Consignment Agreement that is separately established by the Company (the “Consignor”).
(2) A person who wishes to consign the Listed Item for sale shall warrant to the Company that he/she owns full title without any Charge to the Listed Item to be consigned and also warrants that he/she has the authority to consign the Listed Item based on the full title and that the successful bidder will acquire full ownership of the Listed Item without any Charge once the Listed Item is delivered to the successful bidder.
(1) The Consignor may set the reserve price when selling the Listed Item, provided that the amount shall be in Japanese Yen.
(2) The Company shall not sell the Listed Item at an amount below the reserve price.
(3) The reserve price, once it has been set, may not be changed without the Company’s consent.
The Company shall not disclose the Consignor’s name at a sale or in the catalogue without the Consignor’s consent.
The Company may modify these Terms and Conditions at any time and such modification will be announced at the venue of the preview event or posted on the Company’s website.
None of the Consignor, the prospective bidder, the bidder, and the successful bidder (hereinafter, collectively referred to as the “Parties related to the Sale”) may assign or furnish as collateral their rights against the Company and status under these Terms and Conditions.
(1) The Company shall have no liability for damages for any reason whatsoever in cases where these Terms and Conditions provide that the Company shall have no liability.
(2) The Company shall have no liability for any damages that arise through no fault of the Company, such as a natural disaster, civil strife, disturbance, or any other unforeseen circumstances.
(3) Even if the Company owes to the successful bidder a duty to store the Listed Item, in cases other than the case set forth in the preceding paragraph (2), if the Listed Item is destroyed, lost, stolen, damaged, or defaced due to the willful misconduct or negligence of the Company, the following provisions shall apply in relation to the successful bidder, provided that, in such case, the Company shall have no liability for damages except for those set forth in this Article:
1. If the Listed Item is destroyed, lost, stolen, or materially damaged or defaced, the sales contract between the successful bidder and the Company shall automatically terminate, and the successful bidder shall not be liable for the payment of the Purchase Price, and the Company, if it has already received payment of the Purchase Price, shall refund the Purchase Price without any interest. In such case, the successful bidder may not make a claim for damages or any other claim against the Company.
2. If the Listed Item is non-materially damaged or defaced, the Company shall reduce the sales price to the successful bidder by only the percentage of the damages commensurate to the damage or defacement relative to the hammer price. The successful bidder may not make a claim for damages or any other claim against the Company except for such price reduction.
3. In the case of a claim pursuant to this Article, the successful bidder shall bear the burden of proving whether or not there is damage or defacement, the extent thereof, percentage, and whether or not there was willful misconduct or negligence on the part of the Company.
(4) In a case that is not set forth in any of the items above, if there is no willful misconduct or gross negligence, the Company shall have no liability for damages, and even if there is willful misconduct or gross negligence, the scope of damages shall be limited to ordinary damages that are direct damages and the Company shall not compensate for any loss of profits due to the resale of the Listed Item and indirect damages such as emotional pain and suffering. The scope of damages for the destruction, loss, damage, or defacement of the Listed Item shall be limited to the scope set forth in paragraph (3), items 1 and 2 of the preceding paragraph.
(1) Consignors, prospective bidders, bidders, and the successful bidder represent and warrant to the Company that, at the time of the formaton of the agreement between the Company and the Parties related to the Sale (hereinafter referred to as this “Agreement”) and in the future, the consignors, prospective bidders, bidders, and successful bidder (if a consignor, prospective bidder, bidder, or successful bidder is a legal entity, including its representatives, officers, and persons with substantial control over its management) is not an organized crime group, member of an organized crime group, quasi-member of an organized crime group, person who was a member of an organized crime group at any time in the past five (5) years, entity affiliated with an organized crime group, corporate racketeer (sokaiya), person engaging in criminal activities under the pretext of political activities, religious activities, or social activism, special intellectual crime group, or any other antisocial force (“Antisocial Force(s)”).
(2) If the Company determines that an investigation is required to determine the applicability of this Article, at the request of the Company, consignors, prospective bidders, bidders, and the successful bidder shall cooperate with such investigation and submit the documents determined by the Company to be necessary for the investigation.
(3) If it is found that a consignor, prospective bidder, bidder, or successful bidder belongs to an Antisocial Force or falls under any of the items below, the Company may immediately terminate this Agreement without a demand to cure or any other procedure:
1. An Antisocial Force is found to have control over, or be substantially involved in, its management
2. It is found to have wrongfully used an Antisocial Force for the purpose of illicitly benefiting itself or a third party or inflicting damage on a third party
3. It is found to be involved with an Antisocial Force such as providing funding or benefits
4. Directly or through a third party, it makes a violent demand, makes an unreasonable demand that exceeds one’s legal responsibilities, engages in threatening behavior, or engages in any conduct that uses violence
5. Any other situation equivalent to the items above
(4) If the Company terminates this Agreement pursuant to the provisions of this Article, the Company shall have no liability to compensate for any damages suffered by the consignors, prospective bidders, bidders, and successful bidder as a result of such termination.
(5) The termination of this Agreement shall not preclude the Company from making a claim for damages against the consignors, prospective bidders, bidders, and successful bidder.
These Terms and Conditions shall be governed by and construed in accordance with the laws of Japan, and any matter not provided for in these Terms and Conditions shall be subject to the laws of Japan.
This Agreement shall be prepared in and construed in the Japanese language. In the event of any discrepancy or inconsistency between the Japanese version of these Terms and Conditions and any reference translation thereof, the Japanese version shall prevail.
Any dispute relating to these Terms and Conditions shall be subject to the exclusive jurisdiction in the first instance at the Tokyo District Court, the Kyoto District Court, the Tokyo Summary Court, or the Kyoto Summary Court in Japan.
With respect to any matter not provided for in these Terms and Conditions, the Parties related to the Sale shall discuss and work to resolve such matter in good faith in accordance with the laws of Japan.
Any person who wishes to consign a work of art for sale by Shibunkaku Co., Ltd. (the “Company”) through a bidding process to be made by the Company under the name of Shibunkaku Sale, and such consignors, shall be subject to the Sale Terms and Conditions established by the Company and this Agreement. This Agreement and the Sale Terms and Conditions constitute a single agreement and the definitions of terms in the Sale Terms and Conditions shall apply to this Agreement, even if it is not specifically cited.
(1) When the Company performs the prescribed examination to determine the propriety as a Listed Item, the prospective consignor shall make the Listed Item available to the Company for inspection and checking and present the supporting materials for the commentary and explanation that should be stated in the catalogue.
(2) A sales consignment contract between the Company and a prospective consignor shall be formed when the prospective consignor submit to the Company an application for consignment of the sale of the Listed Item by clearly indicating the supporting materials set forth in the preceding paragraph and other items specified by the Company and the Company accepts such application,.
(3) The prospective consignor and the consignor after the formation of a consignment agreement (the consignor after the formation of a consignment agreement is referred to as the “Seller”) shall approve the reserve price (amount that does not include the Company’s commission and the consumption tax thereon) that the Company has determined to be appropriate. (Such reserve price shall be stated in the catalogue.)
(4) If the Company requests an appraisal at the expense of the prospective consignor and the Seller, the prospective consignor and the Seller shall comply with such request at their own expense. Additionally, the Company may request an appraisal at the expense of the prospective consignor and the Seller. (In such case, the prospective consignor and the Seller shall prepay the approximate expenses for such appraisal to the Company.)
(5) The Company has complete freedom as to whether or not to accept a consignment application, and after it has accepted a consignment application, may postpone the sale of the Listed Item without notifying the Seller and may also terminate the consignment agreement before the sale without any notice of the reason. If the Company does not accept a consignment application, postpones the sale, or terminates the consignment agreement, the prospective consignor and the Seller may not make a claim for damages or any other claim against the Company including the expenses incurred under paragraph (1) and the preceding paragraph. (The expenses incurred by the prospective consignor and the Seller under paragraph (1), the preceding paragraph , and Article 7 shall be borne by the prospective consignor and the Seller under all circumstances, and the Company shall not refund any such expenses.)
(6) The Company shall put the Listed Item up for sale through a method determined to be appropriate by the Company.
If a sales contract for the Listed Item is concluded, the Seller shall pay to the Company an amount equal to fifteen percent (15%) of the hammer price as the Company’s commission and the consumption tax thereon.
(1) The Seller may set the reserve price (amount that does not include the Company’s commission and the consumption tax thereon) in accordance with each of the provisions below.
(2) The reserve price shall be in Japanese Yen.
(3) The reserve price shall be decided by written agreement between the Company and the Seller.
(4) If a reserve price is set, the Company shall not sell the Listed Item at a price below the reserve price.
(5) A reserve price, once it has been set, may not be changed without the Company’s consent.
The Company shall not disclose the Seller’s name at a sale or in the catalogue without the Seller’s consent.
(1) The Seller shall pay to the Company the catalogue listing fee established by the Company.
(2) The Company may photograph and reproduce the Listed Item at no charge, and the Seller shall cause the Company to photograph and reproduce the Listed Item.
(3) The Company may use (e.g., publish in a catalogue or advertising), at no charge, the illustrations and copies (including those photographed or reproduced by the Company) provided by the Seller.
(4) The Company’s rights set forth in the preceding paragraph shall continue even after the consignment of the Listed Item has been withdrawn or terminated. In such case, the Company will not revise the catalogue, advertising, or the like.
(1) The Seller shall deliver the Listed Item to the Company at the Company at least by the date of the formation of the consignment agreement. The expenses required for the delivery to the Company shall be borne by the Seller, and the Company shall have no liability for any destruction, loss, theft, damage, or defacement prior to the delivery to the Company. If a prospective consignor has already delivered the Listed Item to the Company for appraisal or any other purpose and a consignment agreement is concluded, the Listed Item will be deemed to have been delivered to the Company for the purpose of consignment upon the conclusion of the consignment agreement.
(2) If a sales contract for the Listed Item has been concluded, the Company shall deliver the Listed Item directly to the successful bidder.
(3) If the Listed Item is destroyed, lost, stolen, damaged, or defaced due to a reason not attributable to the Company while the Listed Item is stored by the Company, the Company shall have no liability for such destruction, loss, theft, damage, or defacement, and as between the Company and the Seller, it shall be borne by the Seller.
Seller shall pay the following expenses (the “Seller’s Expenses”) to the Company:
1. The catalogue listing fee set forth in paragraph (1) of Article 5; and
2. An amount equal to the insurance premium for insurance obtained by the Company for the period from the time the Company receives delivery from the Seller until the Company delivers the Listed Item to the successful bidder or the Seller (the insurance shall be obtained by the Company).
(1) If the Seller wishes to withdraw the consignment (including the termination or revocation of the consignment agreement; same applies below), such withdrawal shall be made to the Company in writing, provided that a consignment may not be withdrawn on or after the eleventh (11th) day after the contract execution date set forth in the consignment agreement (if the first day of such period is a non-business day of the Company (non-business days of the Company are undefined), on or after the next day (if several consecutive non-business days follow the last day of such period, the next day after the last non-business day out of such consecutive non-business days)).
(2) If the Seller withdraws the consignment, the Seller shall immediately pay an amount equal to twenty percent (20%) of the reserve price to the Company as a penalty.
(3) If the Seller withdraws the consignment, the Company will not return the Listed Item until the Seller has completed the payment of the penalty set forth in the preceding paragraph, the Seller’s Expenses, and any other liabilities owed to the Company that have become due.
(4) The provisions of paragraphs (2) and (3) of Article 10 shall apply mutatis mutandis to the withdrawal of consignment, and in such case, the term “sale (bid opening) date” shall be replaced with “the date on which the consignment is withdrawn.”
(1) If a sales contract is concluded through an sale, except in the case set forth in paragraph (2) of this Article, the Company shall pay to the Seller the amount of the hammer price, deducted by the commission and consumption tax set forth in Article 2, the Seller’s Expenses, and any other liabilities owed to the Company that have become due, within thirty-five (35) days (if the last day of such period is a non-business day of the Company (non-business days of the Company are undefined), by the next day (if several consecutive non-business days follow the last day of such period, the next day after the last non-business day out of such consecutive non-business days)) after the sale (bid opening) date.
(2) If the successful bidder has not completed the payment of the Purchase Price and the like to the Company within the period set forth in the preceding paragraph, the Company shall pay the amount set forth in the preceding paragraph to the Seller within five (5) days after the date on which the Company actually receives full payment of the Purchase Price and the like from the successful bidder.
(3) If the successful bidder fails to pay the Purchase Price set forth in Article 9 of the Sale Terms and Conditions to the Company within the Payment Period set forth in Article 10 of said Terms and Conditions, the Company shall notify the Seller and discuss the policy set forth in Article 15 of said Terms and Conditions.
(4) If the successful bidder fails to pay the Purchase Price to the Company within the Payment Period or a problem such as a termination request from the successful bidder actually occurs, the Company may, at its full discretion, terminate the sales contract with the successful bidder without being bound by the results of the discussion under the preceding paragraph. At that time, the amount of the termination fee or cancellation fee set forth in Article 15 of the Sale Terms and Conditions collected from the successful bidder, deducted by the Seller’s Expenses and the commission for the failure to agree on a sale set forth in Article 10 (including the consumption tax on such commission), shall be paid to the Seller, provided that if the successful bidder fails to actually pay the termination fee or cancellation fee, a sales contract will be deemed not to have been concluded despite an sale being held as set forth in Article 10 as between the Company and the Seller.
(5) If the Company grants an extension of the payment due date to the successful bidder, paragraph (2) of this Article shall apply mutatis mutandis.
(6) Unless otherwise provided in the consignment agreement, any fees for the payment by the Company to the Seller as provided for in this Agreement shall be borne by the Seller.
(1) If a sales contract is not concluded despite holding a bidding process, the Seller shall pay to the Company an amount equal to three percent (3%) of the reserve price as commission and consumption tax thereon.
(2) In the case of the preceding paragraph, within ten (10) days after the sale (bid opening) date (if there is deemed to be a failure to agree on a sale, such deemed date) (if the last day of such period is a non-business day of the Company (non-business days of the Company are undefined), by the next day (if several consecutive non-business days follow the last day of such period, the next day after the last non-business day out of such consecutive non-business days)), the Seller shall complete all payment of the commission and consumption tax set forth in the preceding paragraph, the Seller’s Expenses, and any other liabilities owed to the Company that have become due, and then pick up the Listed Item. In such case, paragraph (3) of Article 8 shall apply mutatis mutandis. The pick-up costs shall be borne by the Seller, and the Company shall have no liability to Seller for any destruction, loss, theft, damage, or defacement at or after the time of delivery. In such case, paragraphs (3) and (4) of Article 11 of the Sale Terms and Conditions shall apply mutatis mutandis. (In such case, the term “successful bidder” shall be replaced with “Seller.”)
(3) If the Seller fails to pick up the Listed Item even after the period set forth in the preceding paragraph has elapsed, the Company shall have no liability for any destruction, loss, theft, damage, or defacement of the Listed Item. If the Seller fails to pick up the Listed Item within three (3) months after the bid opening date, the Company may unilaterally perform a private sale of the Listed Item regardless of the Seller’s intent. (Even if a reserve price has been set, such price shall not be binding and may be sold at less than the reserve price.) In such case, the Company shall pay to the Seller the amount of the sale price, deducted by the commission and consumption tax set forth in paragraph (1) of this Article, the Seller’s Expenses, and any other liabilities owed to the Company that have become due.
If the Company terminates a sales contract pursuant to Article 14 of the Sale Terms and Conditions, it will be deemed a case set forth in the preceding Article where a bidding process was held but a sales contract was not concluded and Article 10 shall apply.
(1) If the Company refunds the Purchase Price pursuant to Article 16 of the Sale Terms and Conditions, the Seller may not express any objection against the Company’s decision to make a refund, and shall immediately pay to the Company an amount equal to the amount refunded by the Company.
(2) If the Seller fails to perform its obligation under the preceding paragraph within ten (10) days after the Company requests the payment under the preceding paragraph, the Seller shall make the payment to the Company along with a late payment charge on the amount in the preceding paragraph at a rate of eighteen percent (18%) per annum for the period from the next day after the due date until the payment is made in full.
(3) The Seller shall bear the obligation set forth in paragraph (1) of this Article for a period of five (5) years after the date of agreement on a sale, and the Seller’s successor will have the duty to perform the obligation under paragraph (1) of this Article.
The Company will not owe to the Seller the liability for guarantee of performance provided for in the body text of Article 553 of the Commercial Code.
The prospective consignor and the Seller may not assign or furnish as collateral their rights against the Company and status under this Agreement.
(1) The Company shall have no liability for damages for any reason whatsoever in cases where this Agreement and the Sale Terms and Conditions provide that the Company shall have no liability.
(2) The Company shall have no liability for any damages that arise through no fault of the Company, such as a natural disaster, civil strife, disturbance, or any other unforeseen circumstances.
(3) Even if the Company owes to the prospective consignor and the Seller a duty to store the Listed Item, in cases other than the case set forth in the preceding paragraph (2), if the Listed Item is destroyed, lost, stolen, damaged, or defaced due to the willful misconduct or negligence of the Company, the following provisions shall apply in relation to the prospective consignor and the Seller, provided that, in such case, the Company shall have no liability for damages except for those set forth in this Article and shall not compensate for any loss of profits such as profits from resale relating to destruction, loss, theft, damage, or defacement of the Listed Item and emotional pain and suffering:
1. If the Listed Item is destroyed, lost, stolen, or materially damaged or defaced, the Company shall compensate the Seller for damages equal to the reserve price of the Listed Item (provided that Seller’s liabilities to the Company shall be deducted).
2. If the Listed Item is non-materially damaged or defaced, the Company shall compensate the Seller for the hammer price in the event of an accident on or after agreement on a sale, and for the percentage of the damages commensurate to the damage or defacement relative to the reserve price in the event that there is a failure to agree on a sale or in the event of an accident prior to the sale (provided that Seller’s liabilities to the Company shall be deducted).
3. In the case of a claim pursuant to this Article, the prospective consignor and the Seller shall bear the burden of proving the damage or defacement.
4. The amount of damages to be paid by the Company under this Article shall be limited to the insurance proceeds to be paid pursuant to the casualty insurance contract that the Company separately executes with a casualty insurance company.
(4) In a case that is not set forth in any of the paragraphs above, if there is no willful misconduct or gross negligence, the Company shall have no liability for damages, and even if there is willful misconduct or gross negligence, the scope of damages shall be limited to ordinary damages that are direct damages and the Company shall not compensate for any loss of profits due to the resale of the Listed Item and indirect damages such as emotional pain and suffering. The scope of damages for the destruction, loss, theft, damage, or defacement of the Listed Item shall be limited to the scope set forth in paragraph (3), items 1 and 2 of the preceding paragraph.
This Agreement shall be governed by and construed in accordance with the laws of Japan, and any matter not provided for in this Agreement shall be subject to the laws of Japan.
This Agreement shall be prepared in and construed in the Japanese language. In the event of any discrepancy or inconsistency between the Japanese version of these Terms and Conditions and any reference translation thereof, the Japanese version shall prevail.
Any dispute relating to these Terms and Conditions shall be subject to the exclusive jurisdiction in the first instance at the Tokyo District Court, the Kyoto District Court, the Tokyo Summary Court, or the Kyoto Summary Court in Japan.
With respect to any matter not provided for in this Agreement, the Parties related to the Sale shall discuss and work to resolve such matter in good faith in accordance with the laws of Japan.