By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.
A. GENERAL TERMS & CONDITIONS
Welcome to www.cess.co.uk (the "Site"). These are the terms and conditions ("Terms and Conditions") applicable to the services (the "Services") provided on, and the use of, the Site.
By accessing the Site, using the Services or by registering as either a buyer or a seller (a "Participant") regardless of your physical location, you agree that: (1) you have read these Terms and Conditions; (2) you understand these Terms and Conditions; and (3) you are bound by these Terms and Conditions in your use of the Services and the Site.
The Services may be provided by CESS, its group companies or Associated Auctioneers, as explained in clauses 15 and 16. The relevant party will be notified to you in the Notice to Purchasers.
The Services provided on the Site enable Participants, amongst other things, to:
place bids in online auctions entirely online ("Online Auctions")
These Terms and Conditions refer to Online Auctions.
These Terms and Conditions, together with (i) any additional terms and conditions specific to a particular Online Transaction, which are incorporated herein by reference and can be found through one or more links in the Notice to Purchasers for the Online Transaction in question, constitute the entire agreement between CESS and the Participant regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter and all other conditions whether express or implied at common law or by statute as are capable of lawful exclusion are hereby excluded. Nothing in this clause shall limit or exclude liability for fraudulent misrepresentation. In the event of any conflict between these Terms and Conditions and the Exchange Terms and Conditions, the Exchange Terms and Conditions shall prevail.
The Site is only for use by persons acting within their trade or businesses and may not be used by consumers. We refer to any person offering to sell goods through the Site as a "seller" and any person offering to buy goods as a "buyer" regardless of whether any contract of sale is concluded.
3. Data Protection and Corporate Information
Participants undertake that information concerning other Participants and their employees, contractors or agents obtained through the Site shall not be used for sending unsolicited commercial messages or for any other purpose other than participation in Online Transactions or use of the Site.
Participants also agree that they will only use such information in accordance with applicable laws and regulations, including, without limitation, data protection and privacy laws.
4. Use of Participant Information on the Site
To enable the Site to use information provided by the Participant, the Participants grant CESS and, where applicable, Associated Auctioneers on registration a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) licence to exercise the copyright, trade mark and database rights the Participant has in any information provided and to do so in any media form whether now known or not currently known in order to provide the Services.
5. VAT or other taxes
Any price indicated on the Site or agreed in an Online Transaction is stated exclusive of value added tax or any other applicable sales tax.
Buyers or in Online Transactions shall be responsible for paying any value added tax or other taxes which may be due on amounts owed by the buyers under these Terms and Conditions in the applicable jurisdictions at the rates prevailing at the date that their contract of sale is concluded.
If goods are exported, tax refunds or zero rating may apply. In respect of sales in Online Transactions, tax refunds (if any) will be made by the relevant CESS Group Company or, where applicable, the relevant Associated Auctioneer subject to receipt of (a) satisfactory proof of export by the buyer; (b) the corresponding amount of tax refund from the relevant tax authority or the seller and (c) the relevant tax forms (if applicable).
6. Third Party Rights
A person who is not a party to these Terms and Conditions has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of these Terms and Conditions.
Each Participant agrees to indemnify and hold CESS, its parent companies, subsidiaries and affiliates and the Associated Auctioneers and their respective officers, directors, agents, partners and employees (the "CESS Parties") harmless from and against any and all losses, demands, claims, damages, costs and expenses (including consequential losses or loss of profit, legal costs and expenses and value added taxes or equivalent or similar taxes thereon) and liabilities suffered or incurred directly or indirectly by the CESS Parties arising from or related to:
Any notice given under these Terms and Conditions shall be in writing and in English and shall be served by hand delivering it or sending it by prepaid recorded or special delivery post or prepaid international recorded airmail to: Legal Department, Craigie, Engineering Sales & Services Limited (Reg No (Scotland : 373875), Energy House, 77-79 John Street, Stromness, Orkney, KW16 3AD, United Kingdom, or to such other address as CESS may notify from time to time.
Any such notice shall be deemed to have been received:
Provided that if deemed receipt occurs before 9.00am on a Business Day the notice shall be deemed to have been received at 9.00am on that day, and if deemed receipt occurs after 5.00pm on a Business Day or on any day that is not a Business Day, the notice shall be deemed to have been received at 9.00am on the next Business Day. For the purpose of this clause, "Business Day" means any day which is not a Saturday and Sunday or a public holiday in SCOTLAND and reference to any time shall be to UK time.
For the avoidance of doubt, notice given by Participants to CESS under these Terms and Conditions shall not be validly served if sent by email.
However, notices to Participants by CESS may be sent to the email address provided to CESS during the registration process, receipt of which is deemed 24 hours after an email is sent, unless CESS receives notice that the email address is invalid.
9. Force Majeure
CESS will not be liable for any delay or failure to comply with its obligations under these Terms and Conditions if such delay or failure results from circumstances beyond its control.
10. Use of the Site and Services
CESS grants a limited, non-transferable licence to each Participant to access and make use of the Site for the purposes of the Participant using, or evaluating the Site and the Services in accordance with these Terms and Conditions but not to download (other than page caching) or modify the Site, or any portion of the Site. This licence expressly excludes, without limitation: any resale or commercial use of the Site and the Services; modifying, distributing, copying, republishing or making any derivative use of the Site or the Services; the collection and use of other Participants' e-mail addresses or other information or listing, or any data extraction or data mining whatsoever. Notwithstanding the provisions of this clause, the Participants shall be entitled to download documents and forms including Notices to Purchasers and/or sales brochures for their own internal use.
Participants must not use the Site or Services in any way that causes, or is likely to cause, the Site or Services to be interrupted, damaged or impaired.
Participants agree to comply with all applicable export or import control or related laws or regulations and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. CESS reserves the right to cancel or rescind any sale in an Online Transaction at any time if it determines, in its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations.
Participants are responsible for all communications and content sent from their systems to CESS or, where applicable, an Associated Auctioneer and must use the Site for lawful purposes only.
Participants must not use the Site for any of the following:
Participants are expressly forbidden from any form of bid manipulation, including collusion or bidding on lots that they themselves or a party affiliated with them are selling in an Online Auction, Webcast Auction or Exchange. Buyers may not bid under a false name or as agent for a person who would itself be prohibited by these Terms and Conditions or by the terms and conditions governing the specific Webcast Auction in question from placing a bid on a particular lot.
CESS does not guarantee continuous, uninterrupted or secure access to the Site. The Site and Services are provided "as is" and "as and when available", and, to the extent permissible by law, CESS excludes all implied warranties, conditions or other terms, whether implied by statute or otherwise, including without limitation any terms as to skill and care or timeliness of performance. CESS may change, modify, amend, suspend or discontinue any aspect of the Site or the Services at any time without notice and CESS reserves the right to impose restrictions on certain features of the Site or the Services at any time without notice.
In case of interruption to or suspension of access to the Site or the Services, the Participants' only remedy will be for CESS, in its absolute discretion, to extend the time limit of an offer or an Online Transaction for an appropriate period. Participants' access to the Site may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or Services. CESS will use reasonable endeavours to limit the frequency and duration of any such suspension or restriction.
Participants must take all reasonable steps to minimise loss or damages when accessing the Site, including implementing prudent security and back-up features.
In addition to the other obligations set out in these Terms and Conditions, each buyer acknowledges and agrees that by placing a bid in an Auction ("Bid") or making an offer in another Online Transaction, it represents, warrants and undertakes that it has the authority and capacity to enter such Bid or make such offer and close the transaction and that any Bid that it makes constitutes an irrevocable offer to buy the lot in question for the full amount of the Bid.
The Services and the Site may provide links to the websites or services of others, including shipping, rigging and other services ("Third Party Providers"). Links to such Third Party Providers or any explanation or statement regarding those Third Party Providers do not constitute an endorsement or guarantee by CESS of such Third Party Providers or the services, products, content, material or information presented, made available or provided by such Third Party Providers. Each Participant acknowledges and agrees that CESS is not responsible for any damages or losses caused or alleged to have been caused by the use of any services provided by any Third Party Provider or any products, content, material or information presented, made available or provided by any Third Party Provider.
CESS shall not be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
arising out of or in connection with the use by, or the inability to use of, the Participant of the Site or the Services, or any other matter under these Terms and Conditions.
The aggregate liability of CESS in respect of any other loss or damage suffered by a Participant and arising out of or in connection with these Terms and Conditions or arising out of or in any way connected with the sale or purported sale of any goods on the Site, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the amount of in the case of a buyer in an Online Transaction, the amount of the purchase price paid by the buyer in respect of the goods which are the subject of the claim.
Nothing in this clause shall limit or exclude liability for death or personal injury resulting from the negligence of CESS or its employees or agents.
In any case where an Associated Auctioneer conducts an Online Transaction, neither CESS Limited nor any other member of the CESS plc group of companies ("CESS Group Companies") shall be a party to the Online Transaction and accordingly no CESS Company shall have any obligations nor any liability (whether in contract, tort or otherwise) in any way whatsoever to Participants in relation to such an Online Transaction.
The liability of CESS and an Associated Auctioneer under these Terms and Conditions and the additional terms and conditions applicable to a particular Online Transaction shall be several.
These Terms and Conditions may be amended at any time by CESS in its sole discretion. Such amendment will be posted on the Site and will become effective immediately. Participants are encouraged periodically to review these Terms and Conditions posted on the Site. Use of the Services and the Site constitutes acceptance of these Terms and Conditions, including any amendments.
Should any single provision of these Terms and Conditions be or become fully or partially invalid, illegal or unenforceable, the remainder of these Terms and Conditions shall continue in full force and effect.
Failure or neglect by CESS to enforce at any time any of the terms hereof will not be construed nor will it be deemed to be a waiver of CESS's rights hereunder nor in any way affect the validity of the whole or any part of these Terms and Conditions nor prejudice CESS's rights to take subsequent action.
Participants shall not without the prior written consent of CESS assign, sub-license or deal in any other manner with these Terms and Conditions or any right under these Terms and Conditions.
Participants and CESS are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms and Conditions.
CESS may, in its discretion, charge a buyer's premium ("Buyer's Premium") or other service charge on assets sold (including any applicable value added tax or the equivalent or similar sales taxes in the relevant jurisdiction at the current rate). All such charges will be indicated on the relevant Notice to Purchasers or brochure and/or in the Pricing section of this Site. If charged, the Buyer's Premium shall be collected directly from each successful buyer, in addition to the purchase price as bid. Notwithstanding the foregoing, a discount shall be applied to the Buyer's Premium if buyers pay in the form of cash, cashier's cheque, company cheque (with a letter of guarantee) or wire transfer.
13. Choice of Law and Venue
ALL DISPUTES RELATING TO THESE TERMS AND CONDITIONS BETWEEN PARTICIPANTS AND CESS SHALL BE EXCLUSIVELY GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF SCOTLAND.
PARTICIPANTS AND CESS HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS OVER ANY CLAIMS, DISPUTE OR MATTER ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THEIR ENFORCEABILITY. EACH PARTICIPANT ACKNOWLEDGES THAT CESS WOULD NOT PERMIT THE PARTICIPANT TO REGISTER AS A BUYER OR SELLER IF THE TERMS OF THIS CLAUSE 13 WERE NOT VALID, BINDING AND ENFORCEABLE.
Participants irrevocably consent to any process in any legal action or proceedings arising out of or in connection with these Terms and Conditions or its enforceability being served in accordance with the provisions of these Terms and Conditions relating to the service of notices. Nothing contained in these Terms and Conditions shall affect the right to serve process in any other manner permitted by the laws of the country in which service is to be effected.
If a sale consists of real property in a country outside England and Wales, the Participants, at their own cost, and CESS and/or, where applicable, the Associated Auctioneer agree to do all things and execute all contracting deeds, assignments, instruments, transfers and other documents as may be necessary or desirable to give full effect to the transaction in that country.
These Terms and Conditions are drawn up in the English language. If these Terms and Conditions are translated into another language, the English language text prevails.
CESS may, in its sole discretion, terminate these Terms and Conditions with respect to a Participant (without prejudice to its other rights and remedies) and may deny access to the Services immediately without notice for any breach of these Terms and Conditions by that Participant without any liability for CESS except in case of past transactions already completed.
15. Role of CESS
If you are using the Services as a buyer in an Online Transaction, you are contracting with the relevant CESS Group Company named in the Notice to Purchasers for the relevant Auction, Sealed Bid or Negotiated Sale (the "Notice to Purchasers").
The term "CESS" in these Terms and Conditions shall be construed as meaning the relevant CESS Group Company named in the Notice to Purchasers if using the Services as a buyer in an Online Transaction.
16. Role of Associated Auctioneers
CESS has entered into arrangements with certain auction companies ("Associated Auctioneers") listed elsewhere on the Site. Under these co-operation arrangements, CESS makes the Site and Services available to Associated Auctioneers to conduct Online Transactions. Accordingly, for the purpose of such Online Transactions, a buyer will be contracting with the Associated Auctioneer named in the Notice to Purchasers, and not CESS, under these Terms and Conditions (as if references to CESS were references to the Associated Auctioneer except where the context requires otherwise) and on the additional terms and conditions applicable to the Online Transaction in question.
In no event shall CESS or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on CESS's Internet site, even if CESS or a CESS authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
The materials appearing on CESS's web site could include technical, typographical, or photographic errors. CESS does not warrant that any of the materials on its web site are accurate, complete, or current. CESS may make changes to the materials contained on its web site at any time without notice. CESS does not, however, make any commitment to update the materials.
CESS has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by CESS of the site. Use of any such linked web site is at the user's own risk.