Whisky.Auction terms and conditions
1. Introduction
1.1. We are Whisky Auction Ltd (registered in England and Wales No. 9365276), trading as Whisky.Auction, of Elixir House, Whitby Avenue, NW10 7SF. VAT number GB364951176.
1.2. Our contact email address is [email protected] and telephone number is +44 (0)20 8838 9381.
1.3. We reserve the right to amend these terms and conditions from time to time. We will make you aware if we make material changes to these terms and conditions.
2. Definitions and interpretation
2.1. In these terms and conditions, the following definitions apply:
i. Affiliate means any company or other legal entity which is at the relevant time a subsidiary or subsidiary undertaking or parent undertaking of Whisky Auction Ltd, as the case may be, or a subsidiary or subsidiary undertaking of such parent undertaking as defined in the Companies Act 2006 (as amended) and shall include any Group Company;
ii. Auction/s means the online auction/s on the Site offering the Goods for sale;
iii. Buyer means the person using our Site to bid on, and/or purchase Goods;
iv. Damage means as set out in clause 16.4 (Liability) and as excluded in clause 16.5 (Liability) and clause 6.2 (Leakage);
v. Force Majeure Event shall include, but not be limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen;
vi. Goods means alcohol, casks, miniatures, and alcohol related memorabilia or any other category of goods listed on the Site;
vii. Group Company means any company in The Whisky Exchange Holdings Limited group of companies;
viii. Hammer Price means the accepted bid;
ix. International Customers means an international Buyer, or Seller, or international business;
x. Issue means as described in clause 6.5.1 (Issue);
xi. Lot means the Goods made available to purchase by Auction at any one time;
xii. Premium means the commission paid to us by Buyers and Sellers;
xiii. Private Customers means a private UK individual or non-VAT registered business;
xiv. Seller means the person using our Site to sell Goods;
xv. Service Charges means the listing fees, reserves fees, shipping costs as set out here: Our Fees;
xvi. Site means the website on which these terms are hosted;
xvii. you means a Buyer and/or Seller as applicable to the person reading these terms and conditions;
xviii. us / our / we means Whisky.Auction; and
xix. VAT Registered Customers means a VAT registered business.
2.2. In these terms and conditions, unless context otherwise requires:
i. a reference to a “person” includes a natural person, corporate or unincorporated body, whether and however incorporated or established.
3. Our Auction Services
3.1. We provide Auction services on our Site, whereby Sellers may sell their Goods and Buyers may bid on and, if they are the winning bidder, purchase those Goods. The Goods are sold in Lots. We run a number of Auctions throughout the year, our Auction dates are shown on our Site in our Auction Calendar.
3.2. We act as an agent on behalf of our Sellers and facilitate the sale of the Goods from a Seller to a Buyer.
3.3. If our Site becomes unavailable during an Auction, we will extend the Auction as we deem appropriate. See also, our Website Terms of Use
3.4. Offering Goods for sale, placing a bid on, or purchasing Goods via our Auction on our Site constitutes acceptance of these terms and conditions and our fees structure, as set out here: Our Fees.
4. Registration and identification
4.1. Creating an account
4.1.1. Both Buyers and Sellers must create an account on the Site to participate in an Auction. Our registration fees are set out here: Our Fees. You only need to register once.
4.1.2. Please keep your account details secure and up to date, and note that you will be responsible for any activity on your account, including the obligation to purchase a Lot for which you are the winning bidder.
4.1.3. When you create an account with us, the correct VAT treatment which will be applied to you will be determined based on your country and status (Private Customers, International Customers, VAT Registered Customers). Please ensure that you sign up with the correct details and refer to clause 12.2 (VAT) for further information.
4.1.4. All personal data collected by us under these terms and conditions is collected, processed and stored in accordance with our Privacy Statement.
4.2. Identification
4.2.1. To use our services, you will need to provide some personal information such as (but not limited to) your full name, primary residence address, email address, date of birth, TIN number, and mobile number. Sellers will also be asked for their bank details to allow us to pay you. Buyers may be asked for additional details to allow us to carry out an online credit check. We work with third parties to conduct credit checks and we request some information from Sellers to comply with our reporting obligations to HMRC (see clause 12.2.5 (VAT) for further information).
5. Sellers (see also Seller's Guide)
5.1. Submitting the Goods for Auction
5.1.1. Sellers may submit their Goods for a free valuation and to see whether their Goods can be listed for sale at Auction.
5.1.2. We reserve the right to:
i. choose the wording of any listing to ensure that it is accurate; and
ii. list Lots as we deem appropriate, including combining and dividing Lots at our discretion; and
iii. reject a reserve price, and/or set a maximum reserve price (if we reasonably believe that the requested reserve price is not proportionate to the Lot).
5.2. Delivering the Goods to us
5.2.1. Sellers must arrange for the Goods to be received by us, this can be by posting the Goods to, or hand delivering the Goods to, Whisky.Auction at Elixir House, Whitby Avenue, NW10 7SF, or by hand delivering them to our staff at one of our pop ups.
5.2.2. Sellers must ensure that they appropriately pack (please see our packing guide here) and label any package containing Goods with a packing slip (or packing slip number), so that we can correctly allocate the Goods to the Seller.
5.2.3. If you have posted Goods to us and not received confirmation of receipt from us within 14 working days of dispatch, please contact us as soon as you can, so that we can identify the Goods as yours.
5.3. Seller’s Warranties
5.3.1. When submitting their Goods, Sellers warrant that they:
i. have accurately described and pictured their Goods;
ii. are the owners of all the Goods, or if they are not the owner of the Goods (whether or not they have notified us), they are authorised by the owner of the Goods to sell those Goods;
iii. have complied with all applicable requirements relating to any export or import of the Goods, all duties and taxes on the Goods have been paid (unless otherwise agreed in writing with us);
iv. have notified us, in writing, of any alterations to the items;
v. have provided us with all relevant information, including any past owners, association with people, or events, concerns expressed by third parties relating to the condition, provenance, authenticity, age, suitability, quality and origin of the Goods; and
vi. there are no restrictions affecting the Goods, or our rights to photograph, or display in any media, any photographs, illustrations, or information relating to the Goods.
5.3.2. If you are found, or suspected, to be in breach of this clause 5.3.1 (Seller’s Warranties), we will withdraw your Goods from the Auction and terminate your account and clause 14.1 (Return of Goods (Seller)) shall apply.
5.3.3. Should there be any doubt on the authenticity of an item, the onus is on the Seller to prove that the Goods are as described.
5.3.4. We have the right to refuse any Goods, for any reason, including, but not limited to: Goods which are in a substandard condition; are not fit for consumption; which are below our value threshold; which we are unable to authenticate the Goods; which are new to the market. Further examples of reasons we may not accept Goods are found here. Where Goods are rejected by us, clause 14.1 (Return of Goods (Seller)) shall apply.
5.3.5. In cases of recent limited release bottlings, we reserve the right to restrict acceptance of bottles from a single Seller to one bottle per Auction and to hold bottles back until the official release date has passed.
5.4. Unsold Goods
5.4.1. If a Good does not sell at Auction, we will ask you whether you wish to relist the Good (if we deem this appropriate) or how you wish to have the Good returned to you (see clause 14.1 (Return of Goods (Seller)). We are under no obligation to relist unsold Goods.
5.5. Insurance
5.5.1. We will insure Goods whilst they are in our possession (whilst stored by us and whilst in transit to a Buyer). However, it is the Seller’s responsibility to insure their Goods whilst in transit to us and if returned to the Seller.
6. Buyers (see also Buyer's Guide)
6.1. Goods sold as seen
6.1.1. The nature of our Auctions mean that Goods are not new and, therefore, may not be in perfect condition. Goods are available for inspection prior to the sale and it is for the Buyer to satisfy yourself as to each and every aspect of a Good. We are available to answer any questions you may have.
6.1.2. Goods are sold to the Buyer on an 'as is' basis, with all faults and imperfections, Buyers should note that:
i. photographs contained on the Site are for illustrative purposes only and they may not reveal the true condition of the Goods, or reflect an accurate reproduction of the colours;
ii. the actual condition of a Good may not be as indicated by its outward appearance;
iii. the contents of a bottle or decanter may not be visible and may be damaged; and
iv. given the age of many Goods, Buyers should not assume that a Good is in good condition.
6.2. Leakage
6.2.1. While we take every care to pack Goods securely we cannot guarantee that old corks and closures will not leak in transit.
6.3. Consumption
6.3.1. Buyers should not assume that Goods originally produced for consumption, will be suitable for consumption today. Buyers should obtain advice on the safety of consuming any Goods, prior to doing so. Goods which we have deemed as unsuitable for consumption are sold as Goods of historical interest.
6.4. Insurance
6.4.1. Under the Sales of Goods Act 1979, we are responsible for the risk of loss or damage in transit until the Goods are delivered to UK Buyers and postal insurance is included at no extra charge. For deliveries outside of the UK, insurance will be charged at the prevailing rate, as set out here Our Fees.
6.5. Issue
6.5.1. If the Buyer wishes to question the authenticity of the Goods, or raise an issue with the Goods received (e.g. that Goods are not as described, or that they are damaged) (an “Issue”) please let us know, in as much detail as possible (including sending photos where appropriate), as soon as possible using the contact details at the outset of these terms and conditions. Clause 14.2 (Return of Goods (Buyer)) shall apply.
7. Title in the Goods
7.1. Title
7.1.1. The Seller is the legal owner of the Goods until the Buyer becomes the legal owner of the Goods, which occurs once the Buyer’s payment has been received by us.
7.1.2. We will become the legal owner of the Goods in the following circumstances:
i. if we cannot allocate the Seller of Goods after 3 months of us receiving them, or if we do not receive any response for 3 months from a Seller whose Goods have not been sold at Auction; and
ii. if a Buyer does not arrange the delivery or collection of the Goods within 3 months of winning the Lot.
8. Integrity of our Auctions
8.1. Legal drinking and purchase age
8.1.1. You, and the recipient of the Goods, must be of the legal drinking age to purchase and drink alcohol and when accessing the Site and receiving the Goods.
8.2. Deliveries
8.2.1. All deliveries must be signed for by the recipient, who must be of legal drinking age when accepting the Goods. Our delivery partners may ask for identification from the person receiving or collecting the delivery.
8.3. Prohibited bidding
8.3.1. Sellers must not bid on their own Lots or use third parties to artificially increase the value of their Lots. If you are found, or suspected, to be in breach of this clause, we will withdraw your Goods from the Auction and terminate your account (clause 13.2 (Cancellation)) and clause 14.1 (Return of Goods (Seller)) shall apply.
8.4. Fraud
8.4.1. Fraudulent activity will not be tolerated by anyone. If you are found to have committed, or attempted to commit, fraud whilst using, or attempting to use our services, or we reasonably suspect them same, we will immediately terminate your account, and may refer the matter to the police.
8.5. Forgery (Sellers)
8.5.1. Sellers authorise us to evaluate and test any Goods as we, in our absolute discretion, consider necessary to satisfy ourselves that the Goods are not a forgery.
8.5.2. If we are reasonably satisfied that the Goods submitted by a Seller are a forgery or refill, either when they are submitted to us, or within two years of Goods being sold to a Buyer:
i. the Seller shall purchase the Goods from us, on demand, by paying to us all costs and expenses incurred by us in respect of the Goods.
ii. once we have received clear funds from the Seller, the Seller may request that we destroy the Goods, or arrange to collect the Goods, or for the Goods to be delivered. Also see clause 14.1 (Return of Goods (Seller)).
8.6. Forgery (Buyer)
8.6.1. We take responsibility for any forgeries sold in our Auctions and we agree to refund the Buyer in full, provided always that:
i. you are the named Buyer on the original invoice; and
ii. you notify us in writing as soon as you become aware the Goods may be a forgery or refill, including the Lot number, and all relevant details of your claim, and in any event, within one year after the sale of the Lot to you; and
iii. you return the Goods to us in the same condition as the Goods were sold to you, within 28 working days of you notifying us under clause 8.6.1(i) Forgery (Buyer) above. See clause 14.2 (Return of Goods, Buyer, (where we are at fault)).
8.6.2. You authorise us to evaluate and test the Goods, as we, in our absolute discretion, consider necessary to satisfy ourselves that the Goods is or is not a forgery or refill.
8.6.3. If we are satisfied the Goods are a forgery or refill, which shall be determined in our sole discretion, we will:
i. purchase the Goods from you; and
ii. fully refund you for all fees and payments made by you to us in respect of the fraudulent Goods;
iii. title to the Goods will transfer from you to us when you receive the payment from us.
8.7. If you sell or otherwise dispose of your interest in the Goods, you will not have the benefit of this clause 8.6, nor will the person you sold the Goods to.
8.8. Reporting
8.8.1. We may report fraudulent activity and/or forgeries to the police authorities for further investigation and possible prosecution.
8.8.2. We are required to report certain information about Sellers to HMRC as explained in clause 12 (VAT).
8.9. Zero tolerance of abusive or aggressive behaviour
8.9.1. It is important that our staff are treated with courtesy and respect. Aggressive or threatening behaviour towards our staff will not be tolerated under any circumstances. If you are in breach of this clause 8.9.1 we may terminate your account and cancel the sale of, or purchase of, any Goods (as applicable).
9. Payment for the Lot
9.1. The Auction is conducted in GBP (£) and payments will be taken and transferred in GBP (£). You may incur charges and fluctuation in exchange rates if your bank account is in a different currency (these costs are outside of our control). Sellers, please ensure that your bank account accepts GBP (£).
9.2. The Buyer must pay for the Goods within four working days of the Auction ending, otherwise we will charge an additional fee for late payment, see Our Fees for the current charge.
9.3. Sellers will receive payment once we have received cleared funds from the Buyer. This may take up to 28 working days after the end of the Auction.
9.4. If a Buyer defaults on their payment for the winning Lot, we will waive the relisting fee for the Seller, should the Seller wish to relist the Goods in a future Auction.
9.5. A Buyer must purchase the Lot if the Buyer has the winning bid.
10. Our fees
10.1. Our fees for using our services are found here: Our Fees.
10.2. We reserve the right to charge you reasonable storage costs, insurance costs, and administrative charges for Goods which are held by us for a period of one month (from us notifying you that the Goods are available for delivery or collection) by reason of your default (i.e. significant or purposeful delay in arranging to collect the Goods or having them delivered to you).
10.3. We reserve the right to charge interest on any overdue fees (at an annual rate equal to 5% above National Westminster Bank Plc's base lending rate) from time to time to be calculated on a daily basis from the date upon which we demanded payment from you until the date of actual payment.
11. Delivery and Collection
11.1. Once payment has been received from the Buyer, we will either dispatch the Lot via couriers, or if the Buyer wishes to collect the Lot, notify Buyers that the Lot is available for collection within 10 working days.
11.2. We do not ship to every country, please see Delivery Informationfor more information on the countries we do ship to. Our shipping charges for UK and non-UK deliveries are here Delivery Charges.
11.3. If you agree to collect the Lot, and you do not collect the Lot within 28 working days of us notifying you that the Lot is available for collection, clause 7.1.2 (Title) shall apply.
12. VAT, customs, and import taxes
12.1. Local taxes and duties
12.1.1. Sellers are responsible for all duties and taxes on the Goods prior to the Goods being received by us (unless specifically agreed otherwise in writing).
12.1.2. If the Buyer’s delivery address is outside of the UK, the Goods will be subject to local taxes and duties upon arrival in the recipient's country, which are levied once the Goods reaches customs clearance. The Buyer is responsible for paying these directly.
12.1.3. Any duty paid by us to receive the Goods into the UK will be recharged to the Buyer on the sale of the Goods at Auction.
12.2. VAT
12.2.1. When you create an account with us the correct VAT treatment will be determined based on your country and status (Private Customers, International Customers, VAT Registered Customers). Please refer to the definitions section in clause 2 (Definitions) when reading this clause 12.2.
12.2.2. The Auctioneers’ Margin Scheme gives VAT relief for Private Customers on the Hammer Price.
12.2.3. VAT is payable on all Service Charges and Premiums.
12.2.4. Different categories of Goods have different VAT rules which will be displayed on our Site and on your invoice.
12.2.5. It is a legal requirement for us to collect, verify, and report information regarding our Sellers’ income from Auction sales through the Site to HMRC. If you fail to provide the requested information, we reserve the right to withhold payment. For further information see Tax Information.
13. Cancellation
13.1. Account termination
13.1.1. Provided you are not participating in a live Auction and we do not hold any of your Goods, you may terminate your account at any point via your account page.
13.1.2. We may ban you from using our Site in the event of clause 8.3 (Prohibited Bidding); or clause 8.4 (Fraud); or clause 8.5 (Forgery).
13.2. Once an Auction is Live:
13.2.1. the Lot cannot be cancelled by the Seller;
13.2.2. a bid cannot be cancelled by a Buyer;
13.2.3. a winning bid on behalf of a Buyer is irrevocable i.e. once a Buyer places the winning bid, the Buyer must pay for the Lot. A Buyer who wins a Lot, but refuses to pay, will be banned from the Site and have their account terminated immediately with no redress; and
13.2.4. We will not cancel the Lot/s other than in the event of clause 8.3 (Prohibited Bidding); or clause 5.3 (Breach of Seller’s Warranties); or clause 8.4 (Fraud); or clause 8.5 (Forgery); or clause 13.5 (Our Cancellation Rights).
13.3. Before an Auction (Sellers)
13.3.1. Until the Auction is live, Sellers may withdraw their Lot from an Auction. If a Seller withdraws their Lot from an Auction and requests that their Goods are returned to them, clause 14.1 (Return of Goods (Seller) shall apply.
13.4. After an Auction (Buyers)
13.4.1. A Lot can be returned by a Buyer if we accept that there is an Issue, (see clause 6.5 (Issue), or if the Lot is a forgery (see clause 8.6 (Forgery (Buyers)). See clause 14.2 (Return of Goods (Buyer) (where we are at fault)).
13.4.2. A Buyer may return a Lot within 14 days of receiving it without giving a reason, or if the Buyer believes that there is an Issue, but we disagree. See clause 14.2 (Return of Goods (Buyer) (without reason).
13.4.3.
13.5. Our Cancellation rights
13.5.1. We may terminate these terms and conditions immediately by notice to you, if you breach these terms and conditions, or in the event of force majeure, or without reason by providing one month’s written notice to you.
13.6. Cancellation fees
13.6.1. Where a cancellation is by reason of the Seller’s or the Buyer’s breach of these terms and conditions, or for convenience, once an Auction is Live (Seller) or the Lot has been won (Buyers), we reserve the right to retain any fees paid to us and to charge you for any costs we have already incurred, as well as a further administration charge of 15% of incurred costs.
14. Return of Goods
14.1. Seller
14.1.1. In the event of clause 5.3.1 (breach of Seller’s Warranties); clause 5.3.4. (Seller’s Warranties); clause 5.4.1 (Unsold Goods) clause 8.3.1 (Prohibited Bidding); or clause 13.3.1 (Before an Auction (Sellers) we will retain any Service Charges paid and, arrange for the Seller to pick up the Goods from us, or post them to the Seller, at the Seller’s cost and risk.
14.2. Buyer
(where we are at fault)
14.2.1. If we accept that there is an Issue with the Lot, a Buyer may return the Lot within 14 working days (by post on in person, or as otherwise agreed with us).
14.2.2. In very limited circumstances, we may ask you to send the Lot back to us where we suspect that the Lot is a forgery or where fraud may have been committed.
14.2.3. Where we are at fault, we will refund you all fees paid and pay the costs of returning the Lot.
(without reason)
14.2.4. You may return a Lot within 14 days of receiving it without giving a reason, or if you have a reason, but we disagree. We will refund you the Hammer Price and keep the Service Charges and Premiums, you will be responsible for costs of returning the Lot.
14.3. When returning the Lot (for any reason), the Goods must be in the same condition as they were when we sent the Goods to you (which shall be determined by us, on receipt). We will then issue you with the applicable refund (depending on which of the circumstances set out above apply) within 14 working days of us receiving the returned Goods.
14.4. If the Goods have been damaged by you, or whilst in transit to us, we reserve the right to retain part of the Hammer Price.
15. Force Majeure
15.1. We shall not be liable to you for any failure to perform any obligation under these terms and conditions which is due to a Force Majeure Event. If a Force Majeure Event occurs, we will make you aware of this as soon as possible.
16. Liability
16.1. Our liability under or in connection with, these terms and conditions, regardless of whether such liability arises in tort, contract, or in any other way and whether or not caused by negligence or misrepresentation, shall be as set out in this clause 16 (Liability).
16.2. We are not liable for: (i) consequential, indirect, or special losses; (ii) Goods which are damaged, or broken, while in transit to us, or Goods that are insufficiently or unsuitably packaged or prepared (unless the packers are acting under our instructions); and (iii) any physical loss or damage to any Goods caused by climatic conditions beyond our control, as long as we take reasonable care in handling the Goods to reduce the risk of physical loss or damage.
16.3. our liability shall not be limited in any way in respect of the following:
i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation; and
iii. any other losses which cannot be excluded or limited by applicable law.
16.4. Where Goods are lost or damaged by us, due to our negligence (“Damage”), we will pay you a reasonable estimate of the Auction value of the item, which will be determined by us.
16.5. The Goods are antique in nature and Damage shall not include wear and tear due to the age of the Goods, this shall include, but not be limited to, corks crumbling, leakage, labels coming unstuck, discolouring liquid or bottles.
16.6. Subject to clause 16.3 and excluding a claim under clause 16.4 our total aggregate liability under or in relation to these terms and conditions under to the fees paid by you to us at the date of the event giving rise to the claim.
17. Waiver
17.1. Any failure by us to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision.
18. Severability
18.1. If any provision under these terms and conditions is found in law to be unenforceable all other provisions of these terms and conditions shall remain in full force and effect.
19. No third party rights
19.1. No one other than us (and our Affiliates), or you, has any right to enforce any of these terms.
20. Law and Jurisdiction
20.1. The laws of England apply to these terms, although if you are resident elsewhere you will retain the benefit of any mandatory protections given to you by the laws of that country. Any disputes will be subject to the non-exclusive jurisdiction of the courts of England.
21. Entire Agreement
21.1. These terms and conditions constitute the entire agreement between you and us and supersede all previous agreements, statements and understandings, whatsoever, between you and us.
Updated: 16 January 2024
© Whisky Auction Ltd trading as Whisky.Auction, Elixir House, Whitby Avenue, NW10 7SF (registered in England and Wales No. 9365276). All rights reserved.