Special Terms
THIS IS A LEGAL CONTRACT BETWEEN YOU AND Trading Post Auctions
This is a legal contract between you and Trading Post Auctions. Trading Post Auctions who does business as Trading Post Auctions, offers each item of property (a "lot" or "lots") for sale subject to these Terms of Sale, as changed or supplemented by provisions a) written in other places within these Terms of Sale, b) in written supplements to a catalogue or other materials prepared by us and c) as stated by the auctioneer or posted in writing at the auction, prior to a bid being accepted for a Lot ("Agreement"). By Registering to Bid, Bidding, or otherwise purchasing a Lot from Trading Post Auctions, you agree to be bound by these Terms.
In this Agreement, "we," "us," "our," Trading Post Auctions or similar terms mean Trading Post Auctions and any of its agents, and "you," "your," "buyer" or similar terms mean the individual, corporation or other entity bidding on or buying a lot from us at auction, through the Internet or other means (with the foregoing parties, each a "Party" and together "Parties"). All other capitalized terms have the meanings given in Attachment 1 - Definitions. This Agreement contains mandatory arbitration dispute resolution at Section 52.
Where to Contact Trading Post Auctions.
BIDDING AT AUCTION.
1. REGISTRATION.
1.1 Create Account. To Bid, you must create an account with us. [If you have not previously bid or consigned with Trading Post Auctions, you will need to first create an account with us following the instructions provided at our website.]
1.2 Register to Bid. You also must register and receive a bidding number from us prior to bidding at an auction.
1.3 For certain auctions or lots, we may require you to confirm a minimum age.
2. QUALIFYING TO BID.
2.1 Verification of Your Identity. As a condition of bidding or participating in any auction or sale of one or more lots, we may require you to:
(a) Establish credit and verify your creditworthiness by providing a valid credit card number, credit references, and an initial deposit, which may include a pre-authorization hold, of 10% of the low estimate of the lots on which you may bid;
(b) Verify your identity, by providing us with a government issued photo identification and a valid credit card number;
(c) Verify your address, by providing us with a valid government identification, a utility bill, bank statement and/or a recent postal envelope;
(d) Verification of an age minimum, by providing us with identification; and
(e) such other documents as we may request.
2.2 Verification of Your Entity and Identity.
(a) If you represent an entity, we may also require you to verify the status of your entity, as well as your entity's beneficial owners, by providing us with a list of that entity's shareholders, members, partners, a copy of your entity's charter and/or a good standing certificate; and the entity's shareholders agreement, operating agreement or partnership agreement; along with any of the above-described materials for any of your entity's directors and officers; and
(b) If you are bidding as agent, we may require you to provide a letter of authorization from your principal, as well as any of the documents or verifications listed above;
2.3 Minimum Deposits. We may require first time and international bidders on lots with an estimate of $5,000 or more to: (a) provide an initial deposit of 20% of the low estimate; and (b) grant us the right to charge your credit card 20% of the selling price on the date of the auction.
2.4 Estimates. We may set estimated price ranges (low, mid and high) for a lot. A "low estimate" is the lowest potential price in the range; the "high estimate" is the highest potential price in the range; and the "mid estimate" is the median between the two. Pre-sale estimates are intended as guides for prospective bidders. Estimates are preliminary only and are subject to revision by us from time to time in our sole discretion. We make no guarantees, representations or warranties of any kind, express or implied, including, without limitation, regarding the sale price of any lot, whether the lot will sell at all; the price realized at a post-auction sale, or price realized upon resale, which may be substantially different from our estimates.
3. YOUR BID IS AN OFFER.
Any bid you submit can and may be the winning bid for a particular lot. Your Bid constitutes an offer to purchase the lot. if accepted by us, you become contractually bound to buy the lot in accordance with your last bid. A bid can be accepted by Trading Post Auctions (a) by our auctioneer as the last, highest bid in an auction; or by us an acceptable offer for a lot in a Private Sale (such accepted bid or offer, "Winning Bid"). If your last bid is the Winning Bid, you agree to pay us the amount of your bid and the Buyer's Premium for such lot and assume all risk of loss and damage to such lot, in addition to any obligations, costs and expenses relating to its handling, shipping, insurance, taxes and export as set forth herein.
4. INSPECTION. All sales are final. You are responsible for satisfying yourself as to condition or any other matter concerning each purchased lot. You are advised to personally examine any lot on which you intend to bid prior to the auction and/or sale.
5. CONDITION REPORTS AND DESCRIPTIONS.
As a courtesy, condition reports for any lot may be available from Trading Post Auctions prior to the sale, but Trading Post Auctions assumes no responsibility for errors and omissions contained in any such report, a Trading Post Auctions catalogue or other description of a lot that we may make available. Any statements made by Trading Post Auctions with respect to a lot whether in a condition report, a Trading Post Auctions catalogue or on the Trading Post Auctions website, orally or in writing, are intended as statements of opinion only, are not to be relied upon as statements of fact and do not constitute representations or warranties of any kind. Any description of a lot's dimensions and weights is approximate. Descriptions we make about lots may not describe all faults or restorations. No description or report about a lot is a substitute for your own examination of a lot.
CONDUCT OF AUCTION
6. AUCTION.
A lot will be sold to its highest bidder in an auction as determined in the sole and exclusive judgment of the auctioneer. We will determine the conduct of any auction, including, without limitation, whether, when and/or if to advance the bidding, to reject any bid offered, to withdraw any lot, to re-offer and re-sell any lot, and to resolve any dispute in connection with such sale. Our determination in management of an auction or sale is final and shall be binding upon you and all other participants in such sale.
[In a tie between two or more Absentee Bids, the bid submitted earliest will be the Winning Bid. However, if an Absentee Bid is marked as a Plus Bid, then in a tie, we, on the absentee bidder's behalf, will automatically bid to the next highest bidding increment.]
7. US CURRENCY.
All auctions will be conducted in the currency of the United States of America.
8. BIDDING INCREMENTS.
Bids at auction must be submitted in the following increments:
a
FROM TO INCREMENT
0 300 25
300 1000 50
1000 2000 100
2000 3000 200
3000 5000 250
5000 10000 500
10000 20000 1000
20000 32000 2000
32000 38000 3000
38000 42000 2000
42000 48000 3000
48000 50000 2000
50000 100000 5000
100000 200000 10000
200000 and up 20000
9. RESERVE.
We may offer each lot subject to a confidential minimum price below which we will not sell the Lot (the "Reserve"). Trading Post Auctions may open the bidding on any lot below the Reserve by placing a Bid on behalf of the seller. We prohibit sellers from bidding on their own lots, but we may seek to satisfy the reserve by bidding on behalf of the consignor at the auction up to the reserve. We will indicate in the catalogue or by sale room announcement or notice when parties with an interest In a Lot, for example a beneficiary of an estate, may bid on such Lot.
10. ABSENTEE BIDS. Trading Post Auctions does not accept absentee bids
11. AUCTION RESULTS.
Preliminary auction results will be available online shortly after each auction at the website of the hosting house. Final auction results will be available online once we have audited and verified all sales/bids.
12. THE RECORD OF THE SALE. Trading Post Auctions records of sale will constitute the factual, accurate record of all transactions you participate in under this Agreement for purposes of any disputes. If there is a discrepancy between our records and any other records or messages related to a sale or transaction in a lot, our records of sale will govern.
13. WITHDRAWAL.
We may withdraw a lot from auction for any reason and with no liability whatsoever for such withdrawal.
PAYMENT
14. INVOICING.
All successful bidders will be sent invoices by e-mail or mail (if we do not have an email address on file) within two business days following an auction.
14.1 If you are successful and do not remit payment as specified, the amount owed will be charged to your credit card together with such charges as set forth in this Agreement.
15. PAYMENT FOR AND COLLECTION OF PURCHASES
15.1 You Pay Buyer Costs. If your bid is a Winning Bid (or you agree to pay the purchase price for a lot as a part of a Private Sale), you agree to pay the following charges associated with the purchase of such lot:
(a) Hammer Price;
(b) Buyer's Premium for each lot sold at auction of: (i) 25% of the Hammer Price (or part thereof) up to and including $500,000; (ii) 18% of the Hammer Price (or part thereof) in excess of $500,000 up to and including $3,000,000; and (iii) 12% of the Hammer Price (or part thereof) in excess of $3,000,000.
(c) Any applicable sales tax, late payment charges, storage fees, credit card fees, Enforcement Costs, Bidding Platform fees and charges and other costs, damages or charges assessed in accordance with these Terms (collectively, the "Buyer Costs", and together with the Hammer Price and Buyer's Premium, "All Charges").
15.2 Payment Procedure.
You will pay All Charges immediately following Trading Post Auctions acceptance of the Winning Bid. All payments must be made in US Dollars, in any of the following acceptable forms of payment:
(a) Cash;
(b) Visa, MasterCard, Discover or American Express;
(c) Bank Wire Transfer
15.3 Payment Processor Charges.
We may charge and collect an additional 3% of payments made by credit card or via PayPal or other third party processor.
15.4 Late Payment.
If payment is not received in full within five (5) days of its due date hereunder, we may charge, and you will pay, interest on the outstanding amount at a rate of 1.5% per month.
16. ENFORCEMENT COSTS.
You will reimburse us for the amount of all expenses we incur, including attorneys' fees and court costs, in exercising or enforcing any of our rights hereunder or under applicable law, together with interest on all such amounts at 1.5% per month (the "Enforcement Costs") within fifteen (15) days of your receipt of our invoice for such Enforcement Costs.
SALES TAX
17. NEW YORK. All purchases will be taxed at the Suffolk County New York State tax rate, currently 8.625%.
18. NEXUS. On June 21, 2018, the U.S. Supreme Court decided South Dakota v. Wayfair, Inc., enabling states to impose sales tax responsibilities on "remote" sellers, i.e., sellers without a physical presence in the state. Since the ruling, several states have responded by implementing legislation requiring remote sellers to collect sales tax when the total dollar value of purchases sent to that state exceeds a set threshold. Each state sets its own threshold. Exceeding that threshold is known as creating an economic nexus. Like all other remote sellers, Trading Post Auctions is now required to collect Sales / Use Tax from buyers in these states when the total dollar value of purchases sent to that state creates a nexus. When this occurs, you will see sales tax included on your invoice. The sales tax rate is determined by the State, County, and City where purchases are sent.
19. RESALE CERTIFICATE. If you have a valid resale certificate on file with us, you will be excepted from being charged the Sales/ Use tax. Please send your completed, valid Resale Certificates to: info@tradingpostestatesales.com
20. WARNING.
If we have not achieved nexus with your particular state, it is still your responsibility to pay the proper use tax on your purchases.
PICK-UP AND STORAGE
21. PICK-UP AND REMOVAL. You must remove each lot you are obligated to purchase from Trading Post Auctions (sometimes referred to as, "Purchased Lot") from our premises no later than ten (14) days after the date of the auction (or date of Private Sale if applicable) (the "Sale Date"). You are solely responsible for removal of your Purchased Lot from Trading Post Auctions facilities and all costs associated with packing, insurance, shipment and delivery of your Purchased Lot to your designated destination. Warehouse pickup schedule can be accessed by going to tradingpostschedule.com and picking your day and time to pick up from our warehouse.
22. PROCEDURES FOR PICK-UP AND REMOVAL.
22.1 Times and Days. You may pick up a lot from our facilities during our normal business hours if you provide us at least 24 hours notice to arrange pick-up. Our facilities are open by appointment only, but closed on government holidays. You must supply and bring your own packing materials. Weekend pick-ups may be made by special arrangement and also by appointment only.
22.2 Shippers. If you choose to ship a lot from our facility, you are solely responsible for the shipment. Trading Post Auctions, at your written direction, release your purchased lot to a third-party shipper to pack and ship it. Trading Post Auctions will work with any shipper of your choosing. Please make sure your shipper carries insurance. Trading Post Auctions is not responsible for any damage or loss that occurs while your objects are in another's custody or care. If you choose a shipping method that we have advised against, we may require a waiver from you acknowledging this. For the avoidance of doubt, Trading Post Auctions will not be responsible for any damage or loss that occurs to a Lot once we release it to a third-party shipper.
22.3 Referred Shippers. We may, as a courtesy to you and solely at our discretion and your risk, provide or arrange packing, shipping or similar logistical services, or refer you to third parties who specialize in these services. Any such services referred, provided or arranged by Trading Post Auctions are at your sole risk and expense; Trading Post Auctions assumes no responsibility for any act or omission of any party in connection with any such service or reference, and Trading Post Auctions make no representations or warranties regarding such parties or their services. You expressly release Trading Post Auctions any and all liability arising from your use of any third-party website or services.
22.4 International Shipments. All international customs, duties, and other tariffs are your responsibility. Trading Post Auctions and all third-party shippers will declare the Hammer Price plus the Buyer's Premium as the value of a lot in all cases.
22.5 Oversized Lots. Oversized Lots are objects such as furniture, andirons, floor vases, or any other item whose safe packing will exceed the limits of common carriers. The delivery of oversized, large, heavy, or expensive objects is not an inexpensive proposition and we urge you to consider this before bidding.
23. DEADLINES FOR PICK-UP | STORAGE | ABANDONMENT.
As stated above, you must retrieve your Purchased Lots from Trading Post Auctions facilities within 14 days of the Sale Date. If you fail to retrieve your purchased lot within twenty one (21) days after the Sale Date (such 21-day period, the "Retrieval Period"), we may, without further notice to you, (a) deliver the purchased lot to you at your expense (and invoice you as Buyer Costs); or (b) sell such Purchased Lot at auction without Reserve at a place and time we determine in our sole discretion; or (c) continue to store your Purchased Lot on our, or a third-party's premises and charge you a storage fee of $10 per day per lot ("Storage Fee"). You will pay all such Storage Fees and other fees and charges.
24. CONSEQUENCES OF LATE PICK-UP.
24.1 Abandoned Property. Notwithstanding the foregoing, Trading Post Auctions has no duty to store any lot indefinitely. Any Purchased Lot that is still in our possession thirty (30) days after the end of the Retrieval Period, will be deemed abandoned by you and title to it, to the extent it has passed to you, will pass to us (such abandoned property, "Abandoned Property"). You authorize Trading Post Auctions to discard or sell any Abandoned Property and to keep any proceeds from the sale of Abandoned Property. You hereby release Trading Post Auctions of and from any claims related to such Abandoned Property (including without limitation claims for purchase price refunds, possession of such lot or other damages or losses). You acknowledge and agree that Trading Post Auctions is not responsible for damage or loss that occurs to Abandoned Property and that Trading Post Auctions is not responsible for insuring Abandoned Property after the Retrieval Period.
24.2 Reasonable. You agree that this remedy is reasonable in light of the costs Trading Post Auctions would have to incur to continue to store and process purchased lots after sale.
25. FULL PAYMENT.
You will not be permitted to claim or take possession of any lot until all Buyer Costs you owe to us have been paid in full. We may use any money you pay us to pay Buyer Costs.
26. EXPORT, IMPORT | ENDANGERED SPECIES LICENSES AND PERMITS.
An export or import license may be required for the export or import of your purchased lot. It is your sole responsibility to familiarize yourself with International, U.S. Federal and State laws or requirements regarding the necessary export, import, or other permit required prior to bidding at auction. In addition, countries prohibit the import of property made of or incorporating plant or animal material, such as coral, crocodile, ivory, whalebone, Brazilian rosewood, rhinoceros' horn or tortoiseshell, irrespective of age, percentage or value. We make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes and will have no responsibility with regard to these matters. Before bidding for any lot, you represent, warrant and covenant that you have made your own inquiries as to whether a license is required to export a lot from the United States or to import it into another country. It is solely your responsibility to comply with these laws and to obtain any necessary export, import and endangered species licenses or permits. Failure to obtain a license or permit or delay in so doing will not justify the cancellation of the sale or any delay in making full payment for the lot. We will not rescind the sale of a Lot that is transferred to you and later seized by government authorities due to the presence of endangered species material. As a courtesy to clients, we may advise people who inquire about lots containing potentially regulated plant or animal material, but we do not accept liability for errors or for failing to advise on lots containing protected or regulated species.
TITLE AND RISK OF LOSS.
27. TITLE.
Title to a Purchased Lot will not pass to you (or the third-party buyer if applicable) until Trading Post Auctions has received All Costs of a lot.
28. RISK OF LOSS.
Notwithstanding passage of title, risk of loss to your Purchased Lot passes immediately to you: (a) when you or your agent or a shipper pick-up and take possession of it; or (b) on the thirty-first (31st) day after the Sale Date (whichever occurs first). We are not responsible for any damage or loss that occurs to the Lot past such dates. Further, if for any reason, you return your Purchased Lot back to us, risk of loss remains with you until Your Purchased Lot is delivered to us at our door.
28.1 Exceptions. Under no circumstances will Trading Post Auctions or its insurers be liable for damage caused by changes in humidity or temperature, conditions or defects inherent to the lot, normal wear and tear, war or acts of terrorism. Payments for loss are limited by Section 28.2 (Loss Payment Amounts and Limits).
28.2 Loss Payment Amounts and Limits. You acknowledge and agree that your sole and exclusive remedy for and with respect to any loss or damage to your Purchased Lot for which Trading Post Auctions is liable pursuant to this Agreement will be receipt of the amounts prescribed in this Section 28.2. Accordingly, for any loss or damage to your Purchased Lot for which you have paid All Costs and we bear the risk of loss at the time of the event causing the loss, you will be entitled to the following:
(a) Total Loss. The lot's Hammer Price and Buyer's Premium if it suffers a Total Loss.
(b) Partial Loss. For a lot that suffers a Partial Loss: (i) if you choose to refrain from repairing or restoring the lot, we will pay either (at our election) (A) the amount of depreciation in value from the Hammer Price as a result of the loss (and you will keep title to the lot); or (B) the lot's Hammer Price and Buyer's Premium (but we or our insurer will take title to the lot); (ii) if you choose to repair or restore the lot, we will bear the costs to repair or restore the lot, approved by us and our insurer in advance (and you will retain title to the lot).
REMEDIES
29. SECURITY.
As security for full payment to us of all amounts due from you and prompt collection of your purchased lots in accordance with these Terms, we retain, and you grant to us, a security interest in any Lot purchased by you in accordance with these Terms (and any proceeds thereof), and in any other property or money of the buyer in our possession or coming into our possession subsequently ("Security Interest"). We may apply any such money or treat any such property in any manner permitted under the Uniform Commercial Code and/or any other applicable law. You hereby grant us the right to prepare and file any documents to protect and confirm our Security Interest including but not limited to a UCC-1 Financing Statement.
30. BREACH.
If a buyer fails to make timely payment as required in these Terms, or breaches any other covenant, representation or warranty in this Agreement, we may, in our discretion, exercise any remedies legally available to us, including, but not limited to, the following:
(a) cancel the sale of the lot and any other sale of a lot to you;
(b) resell the lot with or without reserve;
(c) retain all amounts you previously paid to us, which will constitute a processing and restocking fee (which you acknowledge would be reasonable in light of the costs we would have to incur to process your breach and attempt to re-auction or resell the lot);
(d) reject any bids by you at future auctions;
(e) set-off any amounts owed by Trading Post Auctions to you in satisfaction of unpaid amounts; and/or
(f) take any other action we deem necessary or appropriate under the circumstances.
31. CONFESSION OF JUDGMENT.
If you default on payment of one or more Winning Bids under this Agreement, you hereby authorize any attorney to appear in a court of record and confess judgment against you in favor of Trading Post Auctions for the payment of all Charges on those winning bids. Accordingly, the confession of judgment may be without process and for any amount due on this Note including collection costs and reasonable attorneys' fees. This authorization is in addition to all other remedies available to Trading Post Auctions.
32. RECISSION/VOIDING OF SALE BY TRADING POST AUCTIONS.
If we become aware of a third party"s adverse claim relating to a lot purchased by you, we may, in our discretion, rescind the sale. Upon notice of our election to rescind a sale, you will promptly return such Lot to us, at which time we will refund to you the Hammer Price and buyer's premium you paid to us for such lot. This refund will represent your sole remedy against us and/or the seller in case of a rescission of sale under this paragraph, and you agree to waive all other remedies at law or equity with respect to the same. If you do not return such lot to us in accordance with this paragraph, you agree to indemnify, defend and hold Trading Post Auctions, its officers, directors, employees, agents and their successors and assigns, harmless from any damages, costs, liabilities or other losses (including attorney's fees) arising as a result of such third party claim.
33. AML.
Trading Post Auctions is committed to detect and deter money laundering, to protect our consignors from failed transactions and to promote ethics and fairness in our transactions and those generally in the world or art and design. Accordingly, Trading Post Auctions may, at our discretion, refuse your participation in our sales, auctions or activities; cancel your registration with Trading Post Auctions; cancel or refuse to accept your bid for lots at any time prior to, during or even after the close of the sale; and require documentation and information to verify your identity or the identity of the officers, directors or beneficial owners of the entity you represent.
34. PRIVACY AND SECURITY.
We will hold and process your personal information for use as described in, and in line with, our privacy policy. All payment information relating to the sale is collected and processed directly by third-party payment processors, and not by Trading Post Auctions.
SPECIAL PROPERTY
35. FIREARMS.
We only sell antique firearms as defined by the U.S. Bureau of Alcohol, Tobacco and Firearms. Due to state firearms regulations, all handguns, pistols, and revolvers will only be shipped via Federal Express and will only be delivered to a person who holds a Federal Firearms License or a Curios and Relics License. Handguns, pistols, and revolvers can only be picked up at our facilities by a person who holds a Federal Firearms License, or the proper handgun permits of the state where the handgun is sold, which must be shown and logged. There are no exceptions. No firearms will be sold or shipped internationally. It is your sole responsibility to familiarize yourself with your local laws and requirements for the possession of firearms; to identify and obtain any necessary license or permit prior to bidding; and to abide by all Federal, State and local laws and requirements. Neither Trading Post Auction nor the seller makes any representations or warranties as to whether any lot is or is not subject to these regulations and will have no responsibility with regard to these matters.
36. JEWELRY.
For centuries, natural gemstones have been enhanced in a variety of ways, including heating, oiling and other methods. These treatments are accepted by the international jewelry and gemstone trade. We make no representations or warranties, express or implied, as to whether natural stones have been treated or enhanced, whether specifically referenced or not. All stones have been identified by standard gemological field tests, as the mounting allows, and we will make available to prospective buyers any gemological certificates in our possession. However, it will not always be feasible to obtain a qualified lab report on every stone we offer for sale. If you wish to have a grading or gemological report from an independent recognized laboratory such as the Gemological Institute of America, the European Gemological Laboratories or the American Gemological Institute, you may request one at your own expense or hire an independent adviser of your choosing at your expense. Weights given for stones we offer for sale are based solely on measurements and known gemological formulae; they are approximate, not exact. Weight may differ once a stone is removed from its setting. You are advised to verify weight estimates prior to bidding at auction.
COINS AND CURRENCY.
All coins and currency are sold "as is" by us, except as to authenticity. You acknowledge and agree that grading is not an exact science, but a matter of opinion as to condition and other attributes; and that grading can and will differ among third party grading services (even though consensus grading is employed by most), independent experts, dealers, collectors and auction houses, including our own. Opinion as to the grading, condition or other attributes of any Lots may have a material effect on value. Coins and currency are sold without any additional express or implied warranty, including, but not limited to, (a) grade; (b) referencing the opinion of a third-party grading service; (c) with no reference to the opinion of a third-party grading service; (d) with reference to our opinion as to grading; (e) subsequently submitted to a third-party grading service for determination or certification; (f) encapsulated and therefore unable to be physically examined.
36.1 We reserve the right to differ with the grades assigned to any lot, by certificate or otherwise, regardless of the grading service, and will not be bound by any prior or subsequent opinion, determination or certification by third-party grading services including, but not limited to, National Guaranty Company (NGC), Professional Coin Grading Service (PCGS), Paper Money Guaranty (PMG) and Currency Grading and Authentication (CGA) or any other any grading service, third party organization or dealer. There is no guarantee or warranty implied or expressed that the grading standards we use will meet the standards of any grading service at any time in the future. We have graded uncertified coins and currency with reference to the current interpretation of the American Numismatic Association's standards at the time of grading.
36.2 We may re-grade any lot re-consigned for any reasons, including, but not limited to a change of grading standards, differences in opinion, mishandling over time.
36.3 We will not be liable for any patent or latent defect or controversy pertaining to or arising from any encapsulated coins or currency. In any such instance, your remedy, if any, shall be solely against the service certifying and you hereby agree that you will have no remedy against us.
36.4 Please note that certain types of plastic may react with a coin's metal or transfer plasticizer to notes, causing damage. Avoid storage in materials that are not inert.
WARRANTY
37. LIMITED WARRANTY.
For each lot, the seller has represented and warranted to us that the seller is the owner of such lot or is acting as authorized agent of the owner of the lot and has the right to transfer title to the lot free of all liens, claims, and encumbrances.
38. AS IS, WHERE IS.
Except as expressly stated herein, each lot is sold "as is" "where is", with no representation or warranty of any kind from any party (including Trading Post Auctions or the seller of the lot), express or implied, including warranties of merchantability, fitness for a particular purpose and non-infringement.
39. SPECIAL WARRANTY IN SELECT LOTS.
AUTHENTICITY GUARANTEE. The consignor warrants, for a period one (1) year after the Sale Date, that a lot is authentic and conforms to the authorship described in the catalogue for the lot (the "Authenticity Guarantee"). We are not personally liable for the Authenticity Guarantee.
40. EXCLUSIONS AND CONDITIONS.
Notwithstanding the foregoing, each warranty of any kind of nature on any lot sold by Trading Post Auctions will be subject to the following conditions:
40.1 All warranties specifically exclude:
(a) Any lot description that states there is a conflict of specialist opinion.
(b) Any typographical errors in lot descriptions or catalogue.
(c) Wear on furniture, flakes, surface scratches, or manufacturing flaws in glass or ceramic lots.
(d) Any lot for which, at the time of sale, the statements regarding [Authorship/Authenticity] made by Trading Post Auctions conform to the generally accepted opinion of scholars, specialists or other experts, despite subsequent discovery of information that modifies such generally accepted opinions.
(e) The description of clocks and lighting devices, whether in the catalogue or a condition report, as such descriptions may be incomplete and not identify every mechanical replacement, repair, or defect. The absence of reference to the condition of a clock or lighting device does not imply it to be in working condition or without defects, repairs, restorations, or replacement parts. No warranty is made that any watch is in working condition or without defects, restorations, or working parts. Buyers are advised to check watch works prior to auction.
(f) The description of jewelry, whether in the catalogue or a condition report, is rendered as opinion and not a representation of fact, including, but not limited to, specialist opinion as to authenticity, the enhancement or treatment of gemstones, the weight of gemstones, the country of origin, the authorship or origin (manufacture) of an item, its period or the authenticity of its marks.
40.2 Conditions to [Authorization/Authenticity Guarantee]. Notwithstanding, this warranty is subject to the following:
(a) The benefits of this warranty are only available to the original buyer of a Lot from Trading Post Auctions, and not to any subsequent purchasers, transferees, successors, heirs, beneficiaries or assigns of the original buyer.
(b) Neither the consignor nor we make any warranty or representation, express or implied, as to whether you will acquire any reproduction rights, copyrights or other intellectual property rights in, or with respect to any Lot.
41. HOW TO MAKE A SPECIAL WARRANTY CLAIM.
41.1 To make a claim under a Special Warranty, you must submit, at your expense, written notice of your claim under a Special Warranty a written opinion of at least two (2) experts whose principal line of business is the appraisal and authentication of art, antiquities, design objects or other valuable objects similar to the lot), within thirty (30) days after you become aware of the existence of such a claim, and in any event no later than one (1) year following the Sale Date. If the lot is judged inauthentic by the 2 experts, prior to receiving a refund of any amount of the Hammer Price and Buyer's Premium paid by you to us, the lot must be returned to us in the same condition as at the Sale Date.
42. REMEDIES.
Remedies for Breach of [Authorization/Authenticity Guarantee].
Your sole remedy, and our sole liability, for violation of any warranty under this Agreement of any kind or nature is cancelation of the sale of the lot and the refund of the Hammer Price and Buyer's Premium you paid to us for it. Refunds provided under the [Authenticity Guarantee] shall not include packing, shipping, late fees, taxes, shipping, storage or insurance expenses or other amounts incurred or paid by you. You hereby waive any and all other remedies at law or equity with respect to breaches of this warranty.
43. LIMIT OF LIABILITY.
IN NO EVENT SHALL TRADING POST AUCTIONS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. WITH RESPECT TO ANY SALE OF A LOT, IN NO EVENT SHALL TRADING POST AUCTIONS BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSSES IN EXCESS OF THE PURCHASE PRICE PAID BY YOU TO TRADING POST AUCTIONS FOR SUCH LOT TO WHICH THE CLAIM RELATES. We are not liable for any breach or default by the consignor or seller of a Lot or in relation to any terms which are implied into contracts by law and which are the responsibility of the seller of an item.
44. INDEMNITY; LIMIT OF LIABILITY; LIABILITY.
You agree to indemnify, defend and hold Trading Post Auctions, its officers, directors, employees, agents and their successors and assigns, and each buyer, harmless from and against any and all claims, actions, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) relating to the breach, or alleged breach, of any of your agreements, covenants, representations or warranties contained in this Agreement.
45. RECISSION/VOIDING OF SALE BY TRADING POST AUCTIONS.
If we become aware of an adverse claim of a third party relating to a lot purchased by you, we may, in our discretion, rescind the sale. Upon notice of our election to rescind a sale, you will promptly return such lot to us, at which time we will refund to you the Hammer Price and Buyer's Premium paid to us by you for such lot. This refund will represent your sole remedy against us and/or the seller in case of a rescission of sale under this paragraph, and you agree to waive all other remedies at law or equity with respect to the same. If you do not return such lot to us in accordance with this paragraph, you agree to indemnify, defend and hold Trading Post Auctions, its officers, directors, employees, agents and their successors and assigns, harmless from any damages, costs, liabilities or other losses (including attorney's fees) arising as a result of such third party claim. In addition to the other rights of cancellation contained in this agreement, we can cancel a sale of a lot if we reasonably believe that completing the transaction is or may be unlawful or that the sale places us or the seller under any liability to anyone else or may damage our reputation.
46. INTELLECTUAL PROPERTY.
Trading Post Auctions and our licensors will retain ownership of our intellectual property rights, including, without limitation, copyright to all photographs or other images of the lot created by us (including in your Purchased Lots), as well as rights to the copyrights and trademarks and other images, logos, text, graphics, icons, audio clips, video clips, digital downloads in, and the "look and feel" of, the Trading Post Auctions website and each Trading Post Auctions catalogue. You may NOT obtain any rights of ownership, use, reproduction or any other therein by virtue of this Agreement. You may not use any of our trademarks or service marks in any way.
BUYER'S REPRESENTATIONS AND WARRANTIES
You hereby represent, warrant and covenant:
47. LEGAL STATUS. If you are acting as an agent for someone who is not signing this Agreement, you and the principal are jointly and severally subject to the terms and conditions hereunder, to the same extent as though you were acting as principal.
48. INFORMATION.
All information you have provided or will provide to Trading Post Auctions about yourself, your business, your identity and your funds will be totally and completely accurate, truthful and complete.
49. LEGAL.
The purchase of any lot is not being done for illegal purposes. Your funds are not or will not be linked to any criminal activity, tax fraud, money laundering or terrorist activities; neither you nor principal or beneficiary you represent is being investigated for, or has been charged or convicted of, any criminal activity, tax fraud, money laundering or terrorist activities.
50. NOTIFY US.
You will notify us promptly in writing of any events or circumstances that may cause your representations and warranties to be inaccurate or breached in any way.
DISPUTES AND GOVERNING LAW
51. GOVERNING LAW.
This Agreement and all rights and obligations relating to it will be governed by the laws of the State of New York and specifically excluding conflict of laws principles and the UN Convention on Contracts for the International Sale of Goods.
52. DISPUTE RESOLUTION.
Any dispute, controversy or claim arising out of, relating to, or in connection with this agreement, or the breach, termination, or validity thereof ("Dispute"), will be resolved, to the extent possible, within thirty (30) days through discussions held in good faith between appropriate representatives of the parties. If the controversy or claim has not been resolved within the initial 30-day discussion period, then the chief executive officers of each party will engage in good faith discussions for a period of fifteen (15) days beginning immediately after the initial 30-day discussion period. If the controversy or claim has not been resolved after the aforementioned discussion periods in aggregate duration of forty-five (45) days, either party may refer the controversy or claim or claim to American Arbitration Association under its Commercial Mediation Procedures, for mediation in Suffolk County, New York for a period of sixty (60) days. However, if the Dispute is not settled by mediation within the 60-day period, the Dispute will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims will be heard by a single arbitrator, unless the claim amount exceeds $250,000, in which case the dispute will be heard by a panel of three arbitrators. The place of arbitration will be Suffolk County, New York. The arbitration and any proceedings conducted hereunder will be governed by the laws of the State of NEW YORK, Title 9 (Arbitration) of the United States Code and by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings, though hearings may be conducted virtually with the prior written consent of both parties. Time is of the essence for any arbitration under this agreement and arbitration hearings will take place within 90 days of filing and awards rendered within 120 days. Arbitrator(s) will agree to these limits prior to accepting appointment. Each party will bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges will constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party will be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Notwithstanding any language to the contrary in the contract documents, the parties hereby agree that the Underlying Award may be appealed pursuant to the AAA's Optional Appellate Arbitration Rules ("Appellate Rules"); that the Underlying Award rendered by the arbitrator(s) will, at a minimum, be a reasoned award; and that the Underlying Award will not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. However, if we bring an action to enforce this Agreement and/or to collect any sum due and owing to it, we will be entitled to recover (in addition to any other amounts it is owed) our reasonable attorney's fees, collection agency fees, and cost of proceedings from you. However, if we bring an action to enforce this Agreement and/or to collect any sum due and owing to it, we will be entitled to recover (in addition to any other amounts it is owed) our reasonable attorney's fees, collection agency fees, and cost of proceedings from you.
53. RULES.
53.1 No Waiver. Any failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on that party by this agreement does not operate as a waiver of that power or right unless expressed in writing to be a waiver.
53.2 No Reliance. In entering into this agreement, the parties have not relied on any representations or warranties about its subject matter except as provided in this agreement.
53.3 Amendments. No change, modification, alteration or addition to any provision, or waiver of any provision of this Agreement will be valid unless set forth in writing and signed by each Party.
53.4 Notices. Unless otherwise specified herein, all notices, requests or other communications under or in connection with this Agreement to or upon the Parties will be made to such addresses and to the persons designated on the signature page to this Agreement, or such other people and addresses as provided in writing by either of the Parties from time to time, and will be deemed to have been given hereunder only as follows: (a) if delivered by overnight commercial delivery service, upon receipt as evidenced by the records of such service; (b) if sent by certified or registered mail, seven (7) calendar days after posting it; and (c) if sent by email, once the receiving Party confirms its receipt by reply or other written communication.
53.5 Further Assurances. You will furnish us, upon our request, with any additional information required to comply with applicable law. You will provide us, upon our request, verification of your identity in an appropriate form.
53.6 Counterparts. This Agreement may be executed in any number of counterparts. Signatures sent using a digital signature service or a web-based acceptance form or by facsimile transmission and scanned executed agreements in PDF format sent by email transmission are each valid and binding and will be deemed an original. All counterparts, taken together, constitute one instrument.
53.7 Assignments; Transfers. This Agreement and all the provisions hereof will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, provided that neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned or transferred by any Party without the prior written consent of the other Party, which consent will not be unreasonably withheld and any attempted assignment or transfer in violation of this Section will be void.
53.8 Translations. If we have provided a translation of this agreement, we will use this original version in deciding any issues or disputes which arise under this Agreement.
54. INTERPRETATION.
54.1 Headings. The headings to the Sections and Schedules are inserted for convenience of reference only and will be ignored in the interpretation of this Agreement.
54.2 Validity. If a court finds that any part of this Agreement is not valid, or is illegal or impossible to enforce, that part of this Agreement will be treated as being deleted, and the rest of this agreement will not be affected.
54.3 Entire Agreement. This Agreement, including any schedules, exhibits or attachments hereto, and together with the Buyer Terms, constitutes the entire agreement between the Parties with respect to the transactions contemplated hereby and supersedes all prior or contemporaneous understandings and agreements of the Parties (whether written or oral) relating to the subject matter of this Agreement. However, in the event of an inconsistency between this Agreement and the Buyer Terms, this Agreement will control.
54.4 Construction. In this Agreement, unless the context otherwise requires: (a) references to sections, exhibits, attachments and schedules are to those in, of and to this Agreement; (b) words importing the plural will include the singular, and vice versa; (c) references to a "person" will be construed as including references to an individual, company, enterprise, firm, partnership, joint venture, association or organization, whether or not having separate legal personality; (d) use of the word "will" as an action attributable to a Party means the Party agrees to, will, promises to and covenants to take the actions following or connected to the use of the word "will;" (e) use of the word "may" as an action attributable to a Party means that Party has the right, but not the obligation, to take the action following or connected to use of the word "may;" and (f) references to "it," "its," "they," "their," and "them," will be construed as including any generic, omni-gender pronoun such as she, hers, her, he, his, him, it, its, they, their and them.
ATTACHMENT 1: DEFINITIONS.
The following words and expressions will have the meanings given them below when used in this Agreement:
"Abandoned Property" has the meaning given in Section 24.1.
"Agreement" has the meaning given in the Preamble.
"All Charges" has the meaning given in Section 15.1(c).
["Auction Sale" means the sale of Property to the public through competitive bidding administered by Trading Post Auctions (including sales administered or promoted through a third-party Internet auctioneer authorized by Trading Post Auctions).]
"Bidding Increments" has the meaning given in Section 10.7(b).
"Bidding Platforms" has the meaning given in Section 10.8(a).
"Buyer Costs" has the meaning given in Section 15.1(c).
"Buyer Terms" has the meaning given in Section 10.1.
"Buyer's Premium" means the following for any lot: (a) 23% of the Hammer Price (or part thereof) up to and including $250,000; (b) 15% of the Hammer Price (or part thereof) in excess of $250,000 up to and including $3,000,000; and (c) 12% of the Hammer Price (or part thereof) in excess of $3,000,000. [The Buyer's Premium is not part of sale proceeds.]
"buyer" has the meaning given in the Preamble.
"Consignor" has the meaning given in the Preamble.
"Contingency Bid" has the meaning given in Section 10.5(a).
"Dispute" has the meaning given in Section 52.
"Enforcement Costs" has the meaning given in Section 16.
"Hammer Price" means the price for a lot (a) established by the last bidder and acknowledged by the auctioneer before dropping the hammer or gavel or otherwise indicating the bidding on such lot has closed; or (b) achieved through a Private Sale.
"lot" has the meaning given in the Preamble.
"lots" has the meaning given in the Preamble.
"our," has the meaning given in the Preamble.
"Partial Loss" means a lot which has been partially damaged or lost and has, as a result, depreciated in value, in Trading post Auctions' insurer's opinion, by less than fifty percent (50%) of its original value.
"Parties" has the meaning given in the Preamble.
"Party" has the meaning given in the Preamble.
"Plus Bid" has the meaning given in Section 10.5(b).
"Private Sale" means a non-public, discrete sale of a lot to a buyer other than through an auction.
"Property" has the meaning given in the Preamble.
"Purchased Lot" has the meaning given in Section 21.
" Trading Post Auctions " has the meaning given in the Preamble.
" Trading Post Auctions " has the meaning given in the Preamble.
"remote" has the meaning given in Section 18.
"Reserve" has the meaning given in Section 9.
"Retrieval Period" has the meaning given in Section 23.
"Sale Date" has the meaning given in Section 21.
"Security Interest" has the meaning given in Section 29.
"Storage Fee" has the meaning given in Section 23.
"Total Loss" means a lot (a) which has been lost; or (b) which has been damaged and has, as a result, depreciated in value, in Trading Post Auctions insurer's opinion, by more than fifty percent (50%) of its original value.
"us," has the meaning given in the Preamble.
"we," has the meaning given in the Preamble.
"Winning Bid" has the meaning given in Section 3.
"you," has the meaning given in the Preamble.
"your," has the meaning given in the Preamble.
