SUNFLOWER AUCTION, LLC CONDITIONS OF SALE
This agreement constitutes the terms and conditions (hereinafter "Conditions of Sale") which apply to the sale or purchase of property by auctions conducted by Sunflower Auction, LLC (hereinafter "Auction Company"). Transacting business with Sunflower Auction, LLC is an acknowledgement and acceptance of all the terms and conditions contained herein.
1. The Agreement. The Conditions of Sale and the agreements and policies incorporated by reference into them constitute the entire agreement of the parties with respect to the subject matter hereof (the "Agreement") and supersede all prior agreements, claims, representations and understandings of the parties in connection with the subject matter hereof.
2. Amendment of the Conditions of Sale. The Auction Company may amend these Conditions of Sale at any time by posting the amended terms on its web site located at our website. All amended terms shall be effective upon being posted on the website.
3. Guaranty of Authenticity. The Auction Company guarantees to the Buyer that the authorship, period, culture and/or origin of the property is substantially correct as set forth in the property description. If the description does not include a statement as to the artist, creator, date, period, culture or source of origin of a lot, then no guarantee is made as to such attributes or elements. The authenticity guarantee for property sold by the Auction Company is given for a period of 14 days from the date of the auction, and is only given to the Buyer who purchased the property and not to any subsequent owner.
Descriptive statements made regarding the property in the listing title and/or description represent qualified statements of opinion by the Auction Company and are not guaranteed by the Auction Company. Descriptive statements provided in a catalog listing, title, description and/or categorization are provided to assist the Buyer in making an informed purchase decision, but are not a guarantee made by the Auction Company with respect to the accuracy of this information, and a sale is not subject to rescission in the event that any of this non-guaranteed information proves to be inaccurate.
If it is determined to the Auction Company's reasonable satisfaction that a sale is subject to rescission, the Auction Company is obligated to rescind the sale, provided that the property is returned to the Auction Company at its place of business, in the same condition as it was at the time of sale, and free from any claims by third parties. Prior to returning any property, the Buyer must contact the Auction Company to arrange for return shipment of the property at the Buyer's expense. The Auction Company may request, before determining whether to rescind a sale, that the Buyer obtain, at the Buyer's expense, the written opinion of two recognized experts in the relevant field, who are acceptable to the Auction Company. The rescission of a sale and refund of the purchase price is the Buyer's exclusive remedy and is in lieu of any other remedy that might otherwise be available as a matter of law, or in equity. In no event shall damages to the Buyer exceed the purchase price actually paid. The Buyer shall not be entitled to any incidental or consequential damages incurred or claimed. In the event the Auction Company decides to provide a refund to the Buyer, for any reason, the Auction Company shall promptly refund the purchase price to the Buyer, including any buyer's premiums and/or sales tax paid, but not including original or return shipping and/or handling charges, provided that the property is returned to the Auction Company at its place of business, in the same condition as it was at the time of sale and free from any claims by third parties.
4. All Property Sold "AS IS, WHERE IS". Prospective buyers are strongly advised to personally examine any property in which they are interested in purchasing, before the auction takes place. All property offered by the Auction Company is sold "AS IS, WHERE IS", and the Auction Company makes no guarantees, warranties or representations, express or implied, to any Buyer with respect to the property, including without limitation, its physical condition, merchantability, fitness for a particular purpose, quality, rarity, importance, provenance, exhibitions, literature or historical relevance or otherwise. No statement, whether oral or written, shall be deemed such a guarantee, warranty or representation. The Auction Company makes no representation or warranty as to whether the Buyer acquires any reproduction rights in the property or other intellectual property rights in the property. When reviewing descriptions of property, the age and past use of the property should be considered and that property will show signs of reasonable "wear and tear." A Buyer who has any questions about the condition of the property, should contact the Auction Company prior to bidding on or making an offer to purchase the property. Any condition reports provided by the Auction Company are provided to assist the Buyer in making an informed purchase decision, but are not to be deemed a guarantee made by the Auction Company with respect to the accuracy of this information, and a sale is not subject to rescission in the event that any of this non-guaranteed information proves to be inaccurate. The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging. No statement, whether written or oral, and whether made in a catalogue, an advertisement, a bill of sale, a salesroom posting or announcement, the remarks of an auctioneer or otherwise, shall be deemed to create any warranty, representation or assumption of liability.
5. Auction Company's Representations and Warranties. The Auction Company represents and warrants to the Buyer that the Auction Company has the exclusive right to offer the property for sale; the property is, at the time of sale, free of all liens, claims and encumbrances of others, including, but not limited to, claims of governments or governmental agencies; that good title and right to possession to the property will pass to the Buyer, free of all liens, claims and encumbrances; the Auction Company has no reason to believe that the property is inauthentic or counterfeit; if applicable, the property has been lawfully imported into the jurisdiction in which it is currently located, and has been lawfully exported as required by the laws of any country (including any laws or regulations applicable in the European Union) in which it was previously located; if applicable, accurate and proper declarations have been made pursuant to any prior export or import of the property and any required duties and taxes on such export or import of the property have been paid; if the Buyer is located in a country other than that where the Auction Company is located, the property shall be exported by the Auction Company in compliance with all applicable rules and regulations; and, the Auction Company has no reason to suspect or believe the property was purchased with proceeds of criminal activity.
6. Packing and Shipping. The Auction Company shall pack and ship all property unless the Buyer notifies the Auction Company within 2 business days following the auction that the Buyer will arrange for the pick-up, packing and shipping of the property through a third-party shipper. In either case, all property shall be insured against loss or damage during transit in an amount not less than the purchase price. The Auction Company will not provide shipping estimates. Shipping estimates may be obtained directly from a third-party shipper. The Auction Company shall take reasonable care to make sure the Buyer's items are safely stored and available for the third-party shipper to pick them up. The Buyer shall pay the cost of shipping, insurance, sales or use taxes, VAT, GST, TVA, any import or export taxes, duties or fees, and other applicable transactional taxes or fees including the cost of packing labor and materials as determined by the Auction Company. The Auction Company shall not be liable for any acts or omissions of carriers or shippers. The Auction Company shall not be responsible for the timely delivery of the property. The Auction Company shall in no way be liable for any incidental or consequential damages arising from any delay in shipping. Shippers may carry their own insurance, and any claim for loss or damage should be addressed directly to them. If the Buyer selects third-party shipping, the Buyer shall arrange for the pick-up, packing and shipping of the property within 5 business days following the auction. If the property is not picked up within 5 business days following the auction, whether or not payment has been made, the Auction Company reserves the right to charge $10 per lot per day or to deliver said property to a public warehouse for storage at the purchaser's expense. Auction Company shall have no liability for any damage to property left on its premises. In addition, the Auction Company reserves the right to impose a late charge of 1% per month of the total purchase price if payment is not made in accordance with the conditions set forth herein. For property that is not picked up after 30 calendar days, an additional administration fee of $100 will be charged. At the Buyer's request, the Auction Company shall provide a list of third-party shippers in the area along with the invoice. The Auction Company does not endorse these shippers, and the list is provided for informational purposes only.
If the Auction Company is prevented by fire, theft or any other reason beyond the reasonable control of the Auction Company, from delivering the property to the Buyer, the Auction Company's liability to the Buyer shall be limited to refunding the purchase price received by the Auction Company for the property, and shall in no event include any incidental or consequential damages. If the property is damaged in transit, the Buyer shall contact the shipping agent and process a claim under the shipper's applicable insurance policy. If the Buyer receives the property damaged, the Buyer shall retain all shipping materials and take photographs of the damaged property. The Auction Company is not obligated to take the property back, if the property was damaged in transit.
6. Payment. The Auction Company shall provide an invoice to the Buyer immediately following the auction via courier, hand delivery, email, fax or regular mail. The Buyer shall pay the purchase price, plus any applicable buyer's premium and/or sales tax within 3 business days following the auction. A buyer's premium shall be added to the successful hammer price to reach the total invoice price for each lot. Payment must be made in a manner acceptable to the Auction Company. Payment will not be deemed to have been made, and the property will not be released to a third-party shipper, until the Auction Company has received good funds. The Auction Company accepts Western Union Wire Transfers, Bank Wire Transfers, Cash (In House Only), Money Order and Cashier's Check. The Auction Company accepts approved checks from on-site bidders with proper identification and bank letter of guarantee. The Auction Company does not accept checks from internet bidders, unless otherwise approved prior to the auction. A fee of $30 will be charged on all returned checks.
If the Buyer does not comply with any applicable term of this Agreement, the Auction Company may, at its option, cancel the sale and reoffer the property for sale. In addition, the Buyer shall pay the Auction Company for any and all costs of collection or re-offer, handling charges, late charges of 1.5% per month (or the highest rate allowed under applicable law, whichever is lower), commissions and any reasonable legal fees and expenses.
8. Sales Tax. The Auction Company shall publish prior to the auction whether or not Kansas sales tax will apply to the sale of the property. The prevailing sales tax rate for Overland Park is published by the Kansas Department of Revenue on its website. Tax-exempt Buyers must fill out or have on file with the Auction Company a Kansas Resale Exemption Certificate in order to avoid paying sales tax on those auctions where sales tax is collected. Shipments made by common carrier outside of Kansas are not normally subject to Kansas sales tax. Any sales tax due will be the responsibility of the Buyer in the jurisdiction in which they live.
9. Rescission. The Auction Company shall cancel any sale and return the purchase price, if a sale is subject to rescission pursuant to the guarantees stated herein. The right of rescission is available to the original Buyer only and may not be assigned to or relied upon by any subsequent transferee of the property. To receive a refund of the purchase price, the Buyer must return the property to the Auction Company in the same condition it was received.
The Buyer shall resolve any dispute directly with the Auction Company and not by attempting to revoke a charge to a credit card, attempting to exercise any other rights with respect to consumer credit transactions to obtain a refund, or attempting to recall a wire transfer or other form of payment.
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AUCTION COMPANY OR ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUES OR DATA), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
NEITHER THE AUCTION COMPANY NOR ANY AFFILIATE MAKE ANY REPRESENTATION OR WARRANTY AND DO NOT ACKNOWLEDGE ANY LIABILITY TO THE AUCTION COMPANY, THE BUYER OR ANY THIRD PARTY IN RESPECT TO THE AVAILABILITY OR ISSUANCE OF VALID IMPORT, EXPORT OR OTHER PERMITS OR THE EXISTENCE OR EXERCISE OF PREEMPTION RIGHTS TO PURCHASE BY GOVERNMENTAL OR REGULATORY AUTHORITIES ANYWHERE.
The Auction Company reserves the right to withdraw any property before the end of the sale, halt any sale during its progress, and/or remove, screen or edit any materials or content in the catalog listing or description of the property. The Auction Company may refuse to process a transaction for any reason or refuse service to anyone, at any time, in its sole discretion. Neither the Auction Company nor any affiliate shall be liable to any Buyer, Auction Company, or third party by reason of the Auction Company's withdrawal of property before the end of the sale; halting any auction or sale during its progress; removing, screening, or editing any materials or content in the catalog listing or description of the property; refusing to process a transaction; or unwinding or suspending any transaction after processing has begun.
While the Auction Company is a licensed auctioneer, as required by the jurisdiction in which it is located, the Auction Company is not a party to the transaction between the Seller and Buyer. As a result, the Auction Company is not responsible for the quality, safety or legality of the property offered or advertised, the truth or accuracy of the listings, the ability of the Seller to sell the property or the ability of the Buyer to purchase the property. The Auction Company is operating solely as an agent of the Seller.
11. Disclaimer of Warranties. The Auction Company website is PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE AUCTION COMPANY DOES NOW MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ITS WEBSITE, ANY PROPERTY OFFERED ON THE WEBSITE, OR ANY TRANSACTIONS THAT MAY BE CONDUCTED ON OR THROUGH THE WEBSITE, INCLUDING WITHOUT LIMITATION:
a. The implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement;
b. The website will always be available, accessible, uninterrupted, timely, and/or secure or will operate without error;
c. Any implied warranty arising from course of dealing or usage of trade; and
d. Any obligation, liability, right, claim, or remedy in contract or tort, whether or not arising from the negligence of the Auction Company. To the full extent permissible under applicable law, the Auction Company disclaims any and all such warranties.
12. Minimum Bids / Reserves. All property is offered subject to a minimum bid price which is the smallest amount that can be bid for the property. In addition, all property is offered subject to a reserve price, unless otherwise stated, which is the lowest price at which the Auction Company is willing to sell the property. The Auction Company is not obligated to sell the property unless the Auction Company's minimum bid has been met and the Auction Company's reserve price has been met.
13. Indemnification. The Auction Company, the Buyer and any user agree to indemnify and hold the Auction Company and its affiliates, subsidiaries, officers, directors, agents and employees harmless from any and all claims or demands, including reasonable attorneys' fees, made by any third party due to or arising out of a breach of the Conditions of Sale or the documents that are incorporated by reference, or the violation of any law or the rights of a third party.
14. Governing Law. This Agreement shall be governed and interpreted by the laws of the State of Kansas.
15. English Language. English shall be the language of the property listings, and all users waive any right to use and rely upon any other language or translations. Translations of this Agreement may be presented in languages other than English for the convenience of users. The English language version of the Agreement shall control in the event of any inconsistency between that version and any translation presented in a language other than English.
16. Arbitration. Any legal controversy or claim arising out of or relating to the Agreement or the Auction Company's services, excluding legal action taken by the Auction Company to collect fees, to recover damages and/or to resolve rights of intellectual property, shall be settled by binding arbitration by an arbitrator selected by the Auction Company. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
17. Content Ownership and Intellectual Property Rights. All content included in the property listings, including but not limited to text, graphics, logos, button icons, images, audio clips and software, is the property of the Auction Company or other content suppliers and is protected by U.S. and foreign copyright laws and international conventions. This content may be used as a shopping resource, but any other use, including the reproduction, modification, distribution, transmission, republication, display or performance of the content is strictly prohibited. The Auction Company's graphics, logos and service names are trademarks of the Auction Company. These trademarks may not be used in connection with any product or service that is not a product or service of the Auction Company, in any manner that is likely to cause confusion to the public or in any manner that disparages or discredits the Auction Company.
18. Severability and Nonwaiver. If any provision of the Agreement is determined to be unlawful, void, or for any reason unenforceable, that provision shall be deemed severable from the remaining provisions and shall not affect the validity and enforceability of any remaining provisions. The failure of the Auction Company to exercise or forbear any rights or remedies pursuant to the Agreement, shall not constitute a waiver of its right to exercise any rights or remedies or pursuant to the Agreement. A waiver of any provision of the Agreement by Auction Company must be made in writing and signed by an authorized representative.
19. Assignment. The Auction Company, in its sole discretion, may assign the Conditions of Sale and all incorporated agreements to a third party in the event of a merger or acquisition.
20. Additional Terms Regarding eBay Live Auctions. eBay Live Auction ending times are not always accurate, and as such, the Auction Company is not responsible for any problems this may cause. Any pre-sale estimates provided by the Auction Company are the Auction Company's opinion of the price that a willing buyer would pay for the property at auction. These estimates are solely the opinion of the Auction Company, based, where possible, on prices paid for comparable items sold in the past. They are neither a representation nor a prediction of the actual selling price that will be realized at auction which may be substantially different from these estimates. The Auction Company shall not be liable in any way for such a difference. The eBay bid history for eBay Live Auctions may show consecutive bids placed by the same bidder. Statement made though the eBay Live Auctions bidding applet shall supercede any previous statements made by the Auction Company. The Auction Company reserves the right to accept a floor bid for the same price as an eBay Live Auctions bid, regardless of which bid was placed first. The Auction Company also reserves the right to break a tie bid on the floor without giving eBay Live bidders the same opportunity. The Auction Company may, or may not, stick to the published eBay Live Auctions bidding increments and may set its own bid increments as it sees fit. A prospective Buyer agrees to opt into the Auction Company's mailing list by registering for the auction. The Auction Company will post positive feedback for the Buyer immediately after the Buyer posts positive feedback for the Auction Company.
21. Auction Company's Authority. The Auction Company is the sole determinant as to who is the successful high bidder. The successful high bidder assumes full risk and responsibility for the property once the property is sold. A lot will be sold to the highest bidder as determined in the sole and exclusive judgment of the Auction Company. The Auction Company will also have the sole and exclusive power and authority to a) resolve any disputes between bidders, b) determine whether to pass or re-offer a lot for sale, c) reject or challenge any bid or advance in the bidding, d) exclude any bidder from the premises and e) otherwise regulate the bidders, the bidding and its increments. The Auction Company reserves the right to re-open the bidding on any disputed lot. The Auction Company also reserves the right to reject nominal bids and to withdraw from the auction items that do not receive a bid reflective of an item's worth. In the event of any discrepancies, saleroom records take precedence regarding sale price and the winning bidder.
22. Absentee Bids. The Auction Company shall use reasonable care to carry out written absentee bids made prior to the auction for the convenience of clients who are not present at the auction in person. Bids must be placed in US currency. If the Auction Company receives written bids on a particular lot for identical amounts, and these are the highest bids on the lot at the auction, the lot will be sold to the bidder whose written bid was received and accepted first. Execution of written absentee bids is a free service undertaken subject to other commitments at the time of the auction, and the Auction Company disclaims any and all liability for failing to execute a written bid or for errors and omissions in connection with it.