The Online Auction Company, LLC Conditions of Sale:
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. Auction Company may amend these Conditions of Sale at any time by posting the amended terms on its web site located at www.theonlineauctioncompany.com. All amended terms shall be effective upon being posted on the website.
3. Guarantees of Authenticity and Condition. Subject to the terms below, Auction Company provides the following guarantees of authenticity and condition for the property offered at auction. It is recommended that you review the guarantees carefully before bidding.
a. Authenticity Guarantee. Seller guarantees to Buyer that the authorship, period, culture and/or origin of the property is 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 Auction Company is given for a period of one month from the date the sale closes, and is only given to the Buyer who purchased the property and not to any subsequent owner.
Descriptive statements made regarding property in the listing title and/or description represent qualified statements of opinion by Auction Company and are not guaranteed by the Seller. 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 is not a guarantee made by the Seller 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 Seller's reasonable satisfaction that a sale is subject to rescission, the Seller is obligated to rescind the sale, provided that the property is returned to the Seller 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 Seller to arrange for return shipment of the property at the Buyer’s expense. The Seller 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 mutually acceptable to the Seller and the Buyer.
b. Physical Condition Guarantee. Seller warrants to Buyer that the description of a property’s physical condition is substantially correct based upon a reasonable reading of the description of the property, in conjunction with the supplied photographs. This warranty applies only for a period of three days from the date the property is received by the Buyer and is only made to the Buyer and not to any subsequent owner. If the property is framed or mounted on a base or other mounting, or is covered by glass, no guarantee or warranty is made with respect to the condition of the frame, base, other mounting or glass.
If it is determined to the Seller's reasonable satisfaction that the description of a property’s physical condition is not substantially correct, based upon a reasonable reading of the description of the property, in conjunction with the supplied photographs, the Seller shall rescind the sale, provided that the property is returned by the Buyer to the Seller at its place of business, in the same condition as it was at the time of sale and free of any claims by third parties. Prior to returning any property, Buyer shall contact Seller to arrange for return shipment of the property at the Buyer’s expense. 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 Seller prior to bidding on or making an offer to purchase the property.
c. Limitations of Guarantees. All property offered by Auction Company is sold subject to the specific guarantees as to authenticity and physical condition set forth herein. Property offered by Auction Company is usually not new. Other than the specific warranty and guarantee set forth herein, all property offered by Auction Company is sold "AS IS," and Auction Company makes no additional guarantees, warranties or representations, express or implied, to any Buyer with respect to the property, including without limitation, its 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. 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.
d. Sole Remedy. 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 a Buyer exceed the purchase price actually paid. The Buyer shall not be entitled to any incidental or consequential damages incurred or claimed.
e. Refunds. In the event Seller decides to provide a refund to Buyer, for any reason, Seller shall promptly refund the purchase price to Buyer, not including original or return shipping and/or handling charges, provided that the property is returned to the Seller 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. Seller's Representations and Warranties. Seller represents and warrants to Buyer that:
a. Seller has the exclusive right to offer the property for sale;
b. 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;
c. Good title and right to possession to the property will pass to the Buyer, free of all liens, claims and encumbrances;
d. Seller has no reason to believe that the property is inauthentic or counterfeit;
e. 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;
f. 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;
g. If Buyer is located in a country other than that where the Seller is located, the property shall be exported by Seller in compliance with all applicable rules and regulations; and,
h. Seller has no reason to suspect or believe the property was purchased with proceeds of criminal activity.
5. Packing and Shipping. Unless otherwise agreed by the Seller and Buyer, Seller shall arrange for the packing and shipping of the property by a carrier and/or packer of the Seller's choosing, and shall insure the property against loss or damage during transit in an amount not less than the purchase price. 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. Auction Company shall not be liable for any acts or omissions of carriers or shippers. Seller shall arrange for the packing and shipping of the property within a reasonable time following receipt of good funds from the Buyer. Seller shall not be responsible for the timely delivery of the property. Seller 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. Seller shall provide reasonable assistance to Buyer in resolving any damage claims with the insurer.
6. Payment. Buyer shall immediately pay the purchase price, plus any applicable shipping and handling charges. Payment must be made in a manner acceptable to Seller. Payment will not be deemed to have been made, and shipment will not be initiated, until Seller has received good funds.
If Buyer does not comply with any applicable term of this Agreement, the Seller may, at its option, cancel the sale and reoffer the property for sale. In addition, Buyer shall pay Seller 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.
7. Delivery. If Seller is prevented by fire, theft or any other reason beyond the reasonable control of Seller, from delivering the property to Buyer, Seller's liability to Buyer shall be limited to refunding the purchase price received by Seller for the property, and shall in no event include any incidental or consequential damages. Seller shall pack the property safely and securely or arrange for the shipper to pack the property. Upon Seller delivering the property to the shipper for shipment to the Buyer, title to the property and risk of loss shall pass to the Buyer. If the property is damaged in transit, Buyer shall contact the shipping agent and process a claim under the shipper's applicable insurance policy. If Buyer receives the property damaged, Buyer shall retain all shipping materials and take photographs of the damaged property. Seller is not obligated to take the property back, if the property was damaged in transit.
8. Rescission. Seller 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, Buyer must return the property to Seller in the same condition it was received.
Buyer shall resolve any dispute directly with Seller 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.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 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 AUCTION COMPANY NOR ANY AFFILIATE MAKE ANY REPRESENTATION OR WARRANTY AND DO NOT ACKNOWLEDGE ANY LIABILITY TO THE SELLER, 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.
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. Auction Company may refuse to process a transaction for any reason or refuse service to anyone, at any time, in its sole discretion. Neither Auction Company nor any affiliate shall be liable to any Buyer, Seller, or third party by reason of 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 Auction Company is a licensed auctioneer, as required by the jurisdiction in which it is located, Auction Company is not a party to the transaction between the Seller and Buyer. As a result, 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 Auction Company to sell the property or the ability of Buyer to purchase the property.
10. Disclaimer of Warranties. Auction Company website is PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. 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 Auction Company. To the full extent permissible under applicable law, Auction Company disclaims any and all such warranties.
11. Minimum Bid. All property is offered subject to a minimum bid which is the smallest amount that can be bid for the property. In addition, Seller has the option of offering property with a reserve price, which is the lowest price at which Seller is willing to sell the property. Seller is not obligated to sell the property unless the Seller's minimum bid has been met and, if applicable, the Seller’s reserve price has been met.
12. Seller Bidding Prohibited. The Seller of property being offered for sale is not permitted to bid on or offer to buy the property it has offered for sale, nor to instruct, authorize or permit any third party to bid for or purchase such property on Seller’s behalf, or to otherwise take any action that may manipulate the sale process in any way.
13. Indemnification. Seller, Buyer, and any user agree to indemnify and hold 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 Auction Company’s services, excluding legal action taken by 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 Seller. 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 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. Auction Company’s graphics, logos and service names are trademarks of Auction Company. These trademarks may not be used in connection with any product or service that is not a product or service of Auction Company, in any manner that is likely to cause confusion to the public or in any manner that disparages or discredits 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 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. 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.