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Business conditions

Sociedade Comercial de Leilões “O Pregão, Lda.”, hereinafter “Cabral Moncada Leilões”, performs its auction activity subject to Decreto Lei nº 155/2015, which has established the legal framework for auction activity, to the Business Conditions below, and to any other conditions expressed in a proper place. The reference, in epigraphs, to business conditions regarding the buyers and the sellers is meant to simplify and facilitate the understanding of the document, which shall be deemed as one and shall be understood as such.

A. CONDITIONS REGARDING THE SELLERS

A.1. CONTRACT

ART. 1 - The seller of an item and “Cabral Moncada Leilões” are bound to each other from the moment a provision of services contract, hereinafter referred to as the “Contract”, is entered into between both parties.
ART. 2 - The Contract must mandatorily contain:
a) the full name of the seller and, if applicable, his representative;
b) the identification and description, though brief, of the item;
c) the minimum selling price of the item, as agreed by the parties;
d) the commission owed by the seller to “Cabral Moncada Leilões”;
e) the fees regarding insurance and inventory of the item;
f) any other fees agreed by the parties, in particular those regarding transportation, photographs, etc.;
g) the indication, in case the seller is a VAT taxable person and acting in such capacity, of the cases in which the transfer of the good is neither exempted from VAT [pursuant to subparagraph 32 of article 9 or to article 53 of the VAT Code, or in accordance to an identical provision from the law of the European Union Member State where the transfer is executed] nor is it subject to the special rules governing the taxation of profit margins (established by Decree-law 199/96, of 18 October, or in accordance with an identical legal framework from the European Union Member State where the transfer is executed);
h) any other mandatory mention pursuant to the applicable legislation (especially, the Decree-Law 155/2015);
i) the signature of the seller or his empowered representative, stating the knowledge and acceptance of the present business conditions and any specific conditions that may be applicable.
ART. 3 - By entering into the Contract, the seller:
a) guarantees to be the legitimate owner and possessor of the item and that such item is free of any encumbrances, charges or restrictions, related to its holding, use, enjoyment or transmissibility, including classification, inventory or enrollment by any official entity, and that no proceedings have been initiated towards that end; in case during the Contract the seller is notified or becomes somehow aware of the initiation of a procedure towards classification, inventory or enrollment of the item or of any third party claims regarding such item, the seller shall immediately inform the “Cabral Moncada Leilões” of such fact;
b) guarantees not to have omitted any facts or information from “Cabral Moncada Leilões” that, if they had been disclosed, were likely to change its will to enter into the Contract or change the description of the item and / or the value attributed to it;
c) undertakes the obligation to deliver the items or to keep them at the disposal of “Cabral Moncada Leilões” and buyer as soon and whenever requested to do so.
ART. 4 - In case the seller is represented by a third party, the provisions set forth in the preceding article apply to the latter, with the due adaptations. Such third party further undertakes the obligation to present “Cabral Moncada Leilões” the documents that prove its relationship with the seller.
ART. 5 - “Cabral Moncada Leilões” reserves the right to ask for documents that prove the ownership of the item, including documents that prove its acquisition by the seller.
ART. 6- “Cabral Moncada Leilões” also reserves the right, at all times, to perform or to order examinations and / or tests to the item in order to confirm or deny its description made in the Contract. If such examinations or tests reveal that the Contract is not materially correct, “Cabral Moncada Leilões” may terminate or cancel the Contract, and if the seller acted with willful misconduct or gross negligence in its negotiation and conclusion, it shall indemnify “Cabral Moncada Leilões” for the damages suffered by the latter, including image damage if the sale of the item has already been publicized. “Cabral Moncada Leilões” may also terminate or cancel the Contract, without thereby entitling the seller to any compensation, in the event such tests or examinations are not conclusive but there are still grounds for “Cabral Moncada Leilões” to doubt the material correctness of the Contract.
ART. 7 - The Contract may only be modified by mutual agreement, without prejudice of the right of “Cabral Moncada Leilões” to change the description and increase the minimum selling price of the item contained in the Agreement in the catalog in which such item is included, as well as the right of “Cabral Moncada Leilões” to freely establish the number of items to be included in each lot.
ART. 8 - In case the seller fails to comply with its obligations under the Contract, including, inter alia, the obligation to provide the item to “Cabral Moncada Leilões”, the latter may notify the seller to remedy the breach within a reasonable and useful deadline. In case the non-compliance persists after said deadline, “Cabral Moncada Leilões” has the right to terminate the Agreement with immediate effects, and still be entitled to claim from the seller, as a penalty clause, a sum equivalent to the commissions that would be payable by the seller and the buyer in the event of the sale of the item by the reservation value stipulated in the Contract, plus any other amounts owed by the seller under the Contract, without prejudice to any surplus damages.
ART. 9- The contract shall be effective for an indefinite period of time and shall only cease by (i) mutual agreement; (ii) termination on the terms established herein; (iii) termination with just cause; or (iv) as the case may be, termination upon payment of the price or upon return of the good to the seller by “Cabral Moncada Leilões”.

A.2. LIABILITY

ART. 10 - Transportation to, as well as the deposit of the item in, “Cabral Moncada Leilões” facilities, as well as its subsequent withdrawal and transportation in case of no sale, are the sole responsibility of the seller, and it shall be considered that any aid provided by “Cabral Moncada Leilões”, its officers, employees or associates, is provided as courtesy and cannot be the source of any liability. The indication of a company or person to do so also excludes any liability of “Cabral Moncada Leilões”, its officers, employees or associates.
ART. 11 - Any loss or damage, including theft and robbery, which may occur regarding an item while it is held by the seller, even after signing the Agreement, are the seller’s sole responsibility, the latter being obliged to compensate “Cabral Moncada Leilões” and / or the buyer for all damages and losses arising therefrom.
ART. 12 - Without prejudice to the cases where a different rule of this Business Conditions specifically applies “Cabral Moncada Leilões” can only be held liable for items that are deposited in its facilities after the respective Contract has been duly signed by the parties or in case the items were formally entrusted to “Cabral Moncada Leilões” for identification and evaluation purposes. The responsibility of “Cabral Moncada Leilões” for any loss or damage, including theft and robbery, which may occur regarding the items that have been formally entrusted to it is covered by insurance for the reserve amount agreed.

A.3. PAYMENT

ART. 13 - The seller expressly authorizes “Cabral Moncada Leilões” to deduct from the hammer price:
a) the commission due to it under the Contract, plus VAT at the statutory rate; and
b) the value of services and other payments due under the Contract, plus VAT at the statutory rate.
ART. 14 – “Cabral Moncada Leilões" undertakes to deliver the bill of sale to the seller within ten (10) days from the moment the payment in full of the item is made and after its collection by the buyer. The payment of the amount of the sale to the seller, deducted from commissions, services and taxes, shall be made within eight (8) days after the sale account is made available; the seller must contact “Cabral Moncada Leilões” for such purpose. Considering that the buyer must make the payment within 10 days from the auction’s last session it is therefore expected (but not guaranteed, as it is conditioned to the payment in full and collection of the item by the buyer) that the payment to the seller is made within twenty eight (28) days from the date of the auction’s last session.
ART. 15 - In case the item sold is an original work of art, in the meaning of Art. 54 of the Copyright and Related Rights Code (in the version amended by Law no. 24/2006, of 30 June), the net amount receivable by the seller comprehends the amount due to the author or, if applicable, to the author’s heirs, as a resale right (“droit de suite”). The seller is obliged to retain such amount and pay it to the author or, if applicable, to its heirs, upon their request or upon the request of any persons validly representing them. As an exception to the provisions of the preceding two paragraphs, in case the author, the author's heirs or whomever validly represents them requests such payment from “Cabral Moncada Leilões” before payment has been made to the seller, the seller expressly authorizes “Cabral Moncada Leilões” to deduct the amount due in respect of the resale right from the net amount which would be due under Article 13.
ART. 16 - The seller further authorizes “Cabral Moncada Leilões” to deduct any amounts owed by the said seller as a buyer of other items from the net amount which would be due under Article 13, operating, to that extent, the applicable set-off.
ART. 17 - Once the deadline referred to in Article 14 has passed, if “Cabral Moncada Leilões” has not received the full amount of the sale from the buyer, it must inform the seller of that fact and that it took or intends to take legal action to recover the full amount of the sale or cancel the sale. If the reaction against the buyer needs the intervention of the seller, the latter should empower “Cabral Moncada Leilões” to perform all the actions deemed necessary or appropriate. In case “Cabral Moncada Leilões” succeeds, either judicially or extra-judicially, in recovering the credit over the buyer, it shall deliver the amount due to the seller within eight (8) days following the effective collection.

A.4. NO SALE OF AN ITEM

ART. 18 - If an item is not sold in auction, and within one (1) month after the last session of the auction, the seller undertakes to:
a) pay “Cabral Moncada Leilões” what is stipulated in the Contract, the seller not being entitled to any compensation or damages by reason of not having sold the item;
b) withdraw the item.
ART. 19 - “Cabral Moncada Leilões” reserves the right to sell any item not sold in auction out of auction, for the minimum sale price agreed plus commission and tax due, at any time before actual withdrawal of the item by the seller, except if the seller, when entering into the Contract or at a later stage, has expressly indicated to “Cabral Moncada Leilões” that it only intends to sell the item at auction.
ART. 20 - Once the period set forth in Article 18 has elapsed without the withdrawal of the item by the seller, title of ownership over the item shall be deemed reversed for all legal purposes, notwithstanding the fact that the seller shall become liable for any loss or damage, including theft and robbery, which may occur regarding the item. Consequently, neither “Cabral Moncada Leilões” nor its officers, employees or associates will be liable for that eventuality. The seller will also be responsible for all item removal, storage and insurance costs that may be due.
ART. 21- Ninety (90) days after completion of the period referred to in Article 18 and in case the seller has not voluntarily complied with the obligations established therein, “Cabral Moncada Leilões” may place the item for auction, live or online, again, without being subject to the minimum sale price agreed. “Cabral Moncada Leilões” shall then be entitled to receive the commission and the fees set in the Agreement and also to deduct any amounts owed y the seller.

 

B. CONDITIONS REGARDING THE BUYERS

B.1. REGISTERING

ART. 1 - In order to be able to place a bid, the potential buyer should be of age, previously register and have a bidding number. Such register must include the name, address, telephone number, taxpayer number and the signature of the prospective buyer or his empowered representative’s signature, in which he acknowledges and accepts this Business Conditions.
ART. 2 - “Cabral Moncada Leilões” reserves the right, upon registration or at a later date, to request the prospective buyer the submission of a valid and in force original identification document.
ART. 3 - “Cabral Moncada Leilões” also reserves the right, upon registration or at a later date, to demand any potential buyer a guarantee “Cabral Moncada Leilões”, according to its commercial and credit policies and to the potential buyer’s background, deems reasonable, regarding both the form and the amount.
ART. 4 - “Cabral Moncada Leilões” also reserves the right to refuse registration or ignore a bid to anyone who has not fulfilled the respective obligations punctually, including payment and withdrawal of one or more items in previous auctions.
ART. 5 - “Cabral Moncada Leilões” considers that whoever submits its registration as a potential buyer acts on its own behalf and can only act on behalf of a third party by delivering legally valid power of attorney for the purpose, up to two (2) working days before the sale of the item. In case the power attorney is validly challenged by the alleged granter, the alleged representative and bidder will be deemed as buyer.

B.2. BIDDING AND PURCHASE

ART. 6 - Whenever a potential buyer wishes to ensure the actual bidding of one or more items, such prospective buyer shall attend and bid in person at the respective auction, as “Cabral Moncada Leilões” considers the presence of the potential buyer is, in any case, the most adequate way to safeguard his interests.
a) notwithstanding the previous articles, “Cabral Moncada Leilões” can bid on behalf of potential buyers who expressly request such bid through the appropriate written form and under the conditions contained therein, provided that such document is received three hours before the start of the respective session;
b) upon request of potential buyers, received at least three hours before the start of the session, “Cabral Moncada Leilões” is also available to make reasonable efforts to contact them by telephone, in order to allow their participation, by such means, at the bidding of one or more predetermined items;
c) the execution of purchase orders and telephone bidding services referred to in the preceding paragraphs are provided as a courtesy to potential buyers who cannot be present and is confidential and free of charge; “Cabral Moncada Leilões”  will conduct all reasonable efforts within its power to its proper and timely execution; however neither “Cabral Moncada Leilões” nor its officers, employees or associates may in any event be liable for any errors or omissions, even if negligent, that may eventually occur in the execution of such services.
ART. 7 - It is up to the auctioneer to decide, with total discretion, the amount in which the bids evolve in the bidding of each item. However, the auctioneer should never exceed 10% of the previous bid, and no bid shall be less than € 10.
ART. 8 - “Cabral Moncada Leilões” will deem to be the buyer the one that, personally or through a third party duly empowered for the act, bids and wins the bidding of an item for the highest price, notwithstanding the possibility of exercise of the right of first refusal or option by official entities, in accordance with applicable law. It is up to the auctioneer to decide, with full discretionary power, any doubt that may arise, including the withdrawal of the item from the auction or the reposition of the item in auction, at the price it had when the doubt arose.

B.3. PAYMENT AND WITHDRAWAL

ART. 9 - The buyer agrees to pay “Cabral Moncada Leilões” the total amount due for the sale of the item, i.e., the amount of the winning bid plus a commission, which includes VAT, according to the Special Regime for Item Sales at Auction, as follows:
up to and including € 300 – 24,60%;
in excess of € 300 up to and including € 1.000 – 22,14%;
in excess of € 1.000 up to and including € 3.000 – 18,45%;
in excess of € 3.000 up to and including € 20.000 – 14,76%;
on the portion of the hammer in excess of € 20.000 - 12,30%,
In the exceptional cases indicated in the catalogue, VAT may be due on the amount of the bidding.
ART. 10 - The buyer agrees to make the payment referred to in the previous article and withdraw the item within the ten (10) business days following the date of purchase and may be required, at the time of auction, to make a deposit of 30% of its value not covered by guarantee. After the said period of ten (10), “Cabral Moncada Leilões” reserves the right to charge interest at the legal rate for commercial operations.
ART. 11 - The ownership of the item will only be transferred to the buyer after “Cabral Moncada Leilões” has been paid the total amount of the sale in cash, certified check or wire transfer. In case payment is made by check which is not certified, the item will only be considered to have been paid after good collection of such check, regardless of the item being already in possession of the buyer.
Until transfer of title, in accordance with the preceding paragraph, the item remains the property of the seller.
ART. 12 - The withdrawal of any item will only be authorized after the total amount of the sale has been paid.
ART. 13 - The withdrawal and transportation of items is the sole responsibility of the buyer, and any assistance provided by “Cabral Moncada Leilões”, its officers, employees or associates is a matter of courtesy, and cannot have as an effect liability of any kind. The indication of any company or person to do so also excludes any responsibility of “Cabral Moncada Leilões”, its officers, employees or associates.
ART. 14 - Once the item has been withdrawn, or the deadline of ten (10) days is met without the withdrawal of the item by the buyer, the buyer will be liable for any loss or damage, including theft or robbery, which may occur regarding the item. The buyer is also liable for any expenses related to the removal, storage and/or insurance that may occur.
ART. 15 - Any loss or damage, including theft or robbery, of an item auctioned and not collected, that occurs within the ten (10) days deadline referred to in Article 11, only grants the buyer the right to receive an amount equal to the one paid at the time for the item, and does not entitle him to any compensation, damages or interest.
ART. 16 - If the buyer fails to pay the full amount of the sale within fifteen (15) days from the date of the item auction, “Cabral Moncada Leilões” may, at any time, for itself and on behalf of the seller and without any possibility of the buyer to demand any compensation or reparation for this fact:
a) file a lawsuit to recover the full amount of the sale;
b) notify the buyer of the cancellation of the sale, subject to the right of “Cabral Moncada Leilões” to receive the commission owed by the buyer and the consequent possibility of legal action being brought for the collection of such debt.
The alternatives prior shall be understood without prejudice to any other rights that “Cabral Moncada Leilões” may be entitled to, including the right to claim payment of interest and costs of removal, storage and / or insurance of the item that may occur. Similarly, in case “Cabral Moncada Leilões” chooses initially the hypothesis a), such choice shall be without prejudice to the right to terminate such action at any time and annul the sale pursuant to b).

B.4. LIABILITY OF “CABRAL MONCADA LEILÕES”

ART. 17 - “Cabral Moncada Leilões” is responsible for the accuracy of descriptions (which should be understood as references to time, style, author, materials and condition) of items in its catalogs, without prejudice of the possibility of such descriptions being publicly and verbally corrected until the moment of the sale.
ART. 18 - All items are sold in their current condition, and it is up to potential buyers to personally confirm, by prior examination of the item, the accuracy of the description in the catalog, particularly with regard to possible restoration, faults or defects mentioned therein.
a) in case of items that include mechanisms, such as clocks and music boxes, when the description of the catalog does not explicitly mention any “need to repair the mechanism” or equivalent, the item’s mechanisms will be deemed to be functioning;
b) in the cases referred to in the preceding paragraph, the liability of “Cabral Moncada Leilões” is restricted to the mere operation of the mechanism, and not to its perfect functioning, and ceases, in any case, at the time of withdrawal of the item by the buyer.
c) The mention of signatures, initials, names, brands or existing acronyms in an item and its mere factual transcription in its description does not imply the assignment of authorship by “Cabral Moncada Leilões” except in the cases where this authorship is specifically assumed at the beginning of the description.
ART. 19 - Once a relevant discrepancy is verified (i.e., involving a significant change in the value of the item) between the description and the reality of the item at the time of the auction, the buyer, and only him, may, for a period of three years from the date of auction, request the reimbursement of the full amount of the sale through the return of the item, in the condition it was at the time of the auction. However, the buyer will not be entitled to any compensation, damages or interest.
ART. 20 - It is up to the buyer to demonstrate the existence of the relevant discrepancy between the description and the reality of the item, under the terms and for the purpose of the preceding articles.
ART. 21 - “Cabral Moncada Leilões” may require the plaintiff buyer to file a written statement with an attached expert opinion signed by a recognized expert in domestic or international markets, without prejudice to its right, in any case, and at all time, to oppose to the expert opinion presented with another of equivalent value.
ART. 22 - The photographs or representations of the items in the catalog are intended solely for identification of the items subject to sale.
ART. 23 - “Cabral Moncada Leilões” is not liable before the buyer for an item that, for reasons attributable to the seller or a third party, is subject to claims or grievances and / or seized, provisionally or permanently, by the competent authorities, regardless of the date in which the complaint, claim or seizure has been determined or enforced, and the nature or amount of any loss or damage that may arise therefrom, which shall be claimed by the buyer directly to the seller or third party that caused them.
ART. 24 - “Cabral Moncada Leilões” is also not liable before the buyer of an item that is prohibited from leaving the country or subject to any encumbrance, charge or restriction, related to its holding, use, enjoyment or transmissibility, including under legislation protecting cultural heritage, regardless of the date of its classification, inventory or enrollment and of the nature or amount of any loss or damage that may arise to the buyer from such restriction, which must be claimed by the buyer directly to the seller or third party who caused it. Similarly, it is the buyer's responsibility to find out about (and, if applicable, obtain) any (i) licenses and other formalities or restrictions on exports from Portugal to the country of intended destination by the purchaser, and (ii) licenses and other formalities or restrictions on importation into the country of intended destination by the purchaser - e.g., some countries place restrictions on the import of goods incorporating vegetable or animal elements.
ART. 25 - Except in case of willful misconduct, the liability of “Cabral Moncada Leilões” before the buyer is, in any case, limited to the amount actually paid for the purchase of the item.

 

C. CONDITIONS REGARDING BOTH SELLERS AND BUYERS

ART. 1 - “Cabral Moncada Leilões”, respective partners or legal representatives, their spouses, ascendants or descendants do not act, under any circumstance, in its own name as sellers or buyers of the items placed at auction
ART 2. The seller and the buyer expressly authorizes “Cabral Moncada Leilões” to photograph, publish, publicize and use, in any form and at all times, for commercial, cultural, academic or other purposes, related or not to the auction, the image and description of all items that have been sold or acquired through it.
ART. 3 - For the resolution of any dispute between the parties concerning the interpretation or validity of the Contract, including the present business conditions, as well as its implementation and enforcement, the court of the district of Lisbon shall be exclusively competent.

 

D. CONDITIONS REGARDING ONLINE AUCTIONS

The precedent Business Conditions apply to “Cabral Moncada Leilões” online auctions with the following adaptations and modifications, due to its specificity:

ART. 1 Catalogue
The catalogues with the image and description of each and every item included in “Cabral Moncada Leilões” online auctions are only available in digital version at “Cabral Moncada Leilões” internet website.
ART. 2 – Online register
In order to place an online bid, the potential online buyer should be of age, previously register at “Cabral Moncada Leilões” website, mandatorily fulfilling the name, address, taxpayer number, telephone number and email, and declaring to acknowledge and to accept this Business Conditions. The potential online buyer should keep confidential the chosen password received after his register and is responsible for any unauthorized access to his account.
ART. 3 – Online bidding
a) Online bidding can only be accepted when presented through the website www.cml.pt after register of the potential online buyer according to the previous article;
b) “Cabral Moncada Leilões” nor its officers, employees or associates may in any event be liable for any errors or omissions, even if negligent, that may eventually occur in the execution of such online purchase orders;
c) The potential online buyer accepts that his online purchase orders at the “Cabral Moncada Leilões” website, once accepted, are final and cannot, by no means, be canceled or revoked until the term of the correspondent online auction;
ART. 4 – Online bidding increments
Online bidding increments will not exceed in any case 10% of the value of the precedent bid;
ART.5 – Online purchase orders
a) Online purchase orders received and accepted by “Cabral Moncada Leilões” are confidential;
b) Online purchase orders can only be accepted when its value is equal or superior to the base value of each item;
c) Online purchase orders for a certain item will be automatically executed by “Cabral Moncada Leilões” for the best price allowed by the existence any other online purchase orders;
ART.6 – Payment and withdrawal
a) The online buyer agrees to pay “Cabral Moncada Leilões” the total amount due for the sale of the item, i.e., the amount of the winning bid plus a commission, which includes VAT, according to the Special Regime for Item Sales at Auction, as follows:
up to and including € 300 – 24,60%;
in excess of € 300 up to and including € 1.000 – 22,14%;
in excess of € 1.000 up to and including € 3.000 – 18,45%;
in excess of € 3.000 up to and including € 20.000 – 14,76%;
on the portion of the hammer in excess of € 20.000 - 12,30%,
In the exceptional cases indicated in the catalogue, VAT may be due on the amount of the bidding.
c) The online buyer agrees to make the payment referred to in the previous article and withdraw the item within ten (10) days following the date of purchase;
d) The payment can be made through wire transfer, ATM or by certified check;
e) If the online buyer fails to pay the full amount of the sale within ten (10) days from the date of the item auction, “Cabral Moncada Leilões” may, at any time, for itself and on behalf of the seller and without any possibility of the buyer to demand any compensation or reparation for this fact, to sell the item to a third party for the amount due or to put it to sell again in one live or online auction;
f) Should the online buyer fails to withdraw the paid item he will be liable for storage and removal expenses and/or insurance that may occur, according to the correspondent price list in force;
g) The online buyer acknowledges and accepts that his purchase has been undertaken in an online auction and therefore does not benefits from the right of free resolution of the contract according the legislation concerning distance and off-premises contracts;
ART. 7 The ownership of the item will only be transferred to the online buyer after “Cabral Moncada Leilões” has been paid the total amount of the sale. Until transfer of title, in accordance with the preceding paragraph, the item remains the property of the seller.
ART. 8 The withdrawal and transportation of items is the sole responsibility of the buyer, and any assistance provided by “Cabral Moncada Leilões”, its officers, employees or associates is a matter of courtesy, and cannot have as an effect liability of any kind;

NOTES:

LEGAL FRAMEWORK REGARDING JEWELLERY AND MARKING – LAW 98/2015, of 18 of August and Dec. Lei nº 44/2016 de 17.8.2016
Each and every one of the goods made of precious metals, put up on auction by Cabral Moncada Leilões, is in compliance with the referred to Law and its respective regulation, being also duly marked.
CITES - Convention on International Trade of Endangered Species of WILD Fauna and Flora

Each and every one of the goods incorporating materials from endangered species of wild fauna and flora, put up on auction by Cabral Moncada Leilões, were certified in advance pursuant to CITES’s provisions. According to the law, the buyer should request the register in his own name near the competent authorities.