New York, NY, United States
DoneApr 3, 2008 4:00 PM UTC
Kyobai includes art, photographs, and design in the Contemporary Japanese style.
Auction & Auctioneer Information
March 28 - April 2, 10am-5pm April 3, 10am-1pm
- 25% up to £10,000.00
- 20% above £10,000.00
Terms & Conditions
CONDITIONS OF SALE These Conditions of Sale govern the relationship between Bidders and Buyers, Sellers and Phillips de Pury & Company. Bidders and Buyers should read these Conditions of Sale carefully before bidding for a Lot or agreeing to buy a Lot. Their attention is particularly drawn to Paragraphs 4, 7.6, 15.2, 15.5 and 21 which contain specific limitations and exclusions of legal liability. The authorship warranty given to Buyers is described in Paragraph 5. 2 Introduction 2.1 Each Lot in this catalogue is offered for sale and sold subject to: (a) these Conditions of Sale; (b) additional notices and terms printed in other places in this catalogue; and (c) supplements to this catalogue or other written material displayed by Phillips de Pury & Company in the saleroom, in each case as amended by any salesroom notice or announcement by the Auctioneer prior to any bid being made. 2.2 By bidding at the auction, whether in person, through an agent, by written bid, by telephone bid, or other means, Bidders and Buyers agree to be bound by Paragraph 2.1 above. 2.3 These Conditions of Sale, changed or supplemented as provided in this Paragraph 2, contain all the terms on which Phillips de Pury & Company and the Seller contract with the Buyer. 3 Phillips de Pury & Company as Agent Phillips de Pury & Company act as auctioneers and agents for the Seller, unless otherwise indicated in this catalogue or at the time of auction. Phillips de Pury & Company disclaim all responsibility for statements about any Property made by the Seller. This does not affect any rights a Bidder or Buyer may have against the Seller. 4 Description of Property 4.1 Attribution and authorship are matters of opinion and not of fact. Phillips de Pury & Company's description of Lots is partly dependent upon the information provided by the Seller and experts Phillips de Pury & Company may consult, the amount of research and any examination or testing Phillips de Pury & Company may reasonably and practically carry out prior to an auction, and the generally accepted opinion of experts available at the time of cataloguing the Property. 4.2 Phillips de Pury & Company shall exercise reasonable care when preparing catalogue descriptions and condition reports in a manner consistent with their role as auctioneer of a large number of lots and subject to the risks inherent to describing unique works of art and collectable items. 4.3 Phillips de Pury & Company are not able to carry out exhaustive due diligence on each item of Property. Lots in this catalogue are available for inspection prior to the auction and Bidders and Buyers are invited to carry out, and shall be responsible for carrying out, their own due diligence over Lots offered for sale. Bidders and Buyers agree that: (a) Phillips de Pury & Company accept bids on the basis that each Bidder has had the opportunity to inspect the Lot prior to bidding and has satisfied himself about the Property, its description, age, authenticity, genuineness, attribution, provenance, origin, condition, importance, size, quality, quantity, rarity, value, historical reference or significance, medium, material, period, culture and source; (b) none of Phillips de Pury & Company, any Affiliated Company or the Seller make any representation or warranty, orally or in writing, express or implied (other than those which cannot be excluded by law) with respect to any of the characteristics of the Property, including (without limitation): age, authenticity, genuineness, attribution, provenance, origin, condition, importance, size, quality, quantity, rarity, value, historical reference or significance, medium, material, period, culture or source; (c) none of Phillips de Pury & Company, any Affiliated Company or the Seller accept any responsibility for errors or omissions in information provided to Bidders and Buyers by Phillips de Pury & Company or an Affiliated Company, whether orally or in writing, except that Phillips de Pury & Company will accept responsibility for those errors or omissions caused by their own wilful misconduct; (d) Bidders and Buyers acknowledge that many Lots are of an age and type which means that they are not in perfect condition and agree that: (i) all Lots are offered for sale and sold "AS-IS"Â; and (ii) although Phillips de Pury & Company or an Affiliated Company may mention in the description of a Lot significant damage, this does not include all faults, imperfections and restorations; (e) information in this catalogue or elsewhere concerning the characteristics of the Property is offered by Phillips de Pury & Company or an Affiliated Company as a statement of opinion only and none of Phillips de Pury & Company, any Affiliated Companies or the Seller accept any responsibility towards Bidders or Buyers who rely on any such statement of opinion when bidding or buying Property at auction or privately; (f) the estimates provided in the catalogue are not representations of fact but are merely Phillips de Pury & Company's opinion of the price that a willing Buyer might pay for the Property at auction. The actual price achieved at auction or upon resale of the Property may be substantially different from these estimates. Neither Phillips de Pury & Company nor any Affiliated Company shall be liable for any difference between the estimate for any Lot and the actual price obtained for such Lot at auction or upon resale; (g) all weights are approximate, whether or not qualified by the terms stated to beÂ or "approximately"Â; and (h) illustrations are for identification purposes only; they are rarely exact and cannot be used as precise indications of size or to convey full information as to the condition of Lots. 5 Authorship Warranty 5.1 Phillips de Pury & Company warrant the Authorship of Property for a period of five years from the date of the sale by Phillips de Pury & Company, subject to the exclusions and limitations set forth below. 5.2 This warranty is given only to the original Buyer of record at Phillips de Pury & Company (that is, the registered successful Bidder). 5.3 In any claim for breach of the Authorship Warranty Phillips de Pury & Company reserves the right, as a condition to rescinding any sale under this warranty, to require the Buyer to provide to Phillips de Pury & Company (at the Buyer's expense) the written opinions of two recognized experts approved in advance by Phillips de Pury & Company. Phillips de Pury & Company shall not be bound by any expert report produced by the Buyer and reserve the right to consult their own experts at their costs. If Phillips de Pury & Company agree to rescind a sale under the Authorship Warranty, they shall refund to the Buyer the reasonable costs charged by the experts commissioned by the Buyer and approved in advance by Phillips de Pury & Company. 5.4 All other warranties, express or implied, including any warranty of satisfactory quality and fitness for purpose are specifically excluded by Phillips de Pury & Company, the Affiliated Companies and the Seller to the fullest extent permitted by law. This Authorship Warranty is not given: (a) to subsequent owners of the Property, such as purchasers or recipients by way of gift from the original Buyer, and heirs, successors, beneficiaries and assigns; (b) in relation to Property created prior to 1870, unless the Property is determined to be counterfeit (defined as a forgery made less than 50 years ago with an intent to deceive) and it has a value at the date of the claim under this warranty, which is materially less than the purchase price paid; (c) in relation to Property where the description in the catalogue states that there is a conflict of opinion on the Authorship of the Property; (d) in respect of Authorship which on the date of sale was consistent with the generally accepted opinions of specialists, scholars or other experts; (e) in relation to Property whose description or dating is proved inaccurate by means of scientific methods or tests not generally accepted for use at the time of the publication of the catalogue, or which were at such time deemed unreasonably expensive or impractical to use. 5.5 Subject to clause 5.3 the Buyer may bring a claim for breach of the Authorship Warranty provided that: (a) he has notified Phillips de Pury & Company in writing within three months of receiving any information which causes him to question the Authorship of the Lot, specifying the number of the Lot, the auction in which it was included and the reasons why the Authorship of the Lot is being questioned, and (b) he returns the Lot to Phillips de Pury & Company in the same condition as at the time of its auction by Phillips de Pury & Company and is able to transfer legal and beneficial title in the Lot free from any third party claim arising after the date of the auction. 5.6 The Buyer understands and agrees that the exclusive remedy for any breach of the Authorship Warranty shall be a rescission of the sale and a refund of the original purchase price paid. This remedy shall constitute the sole remedy and recourse of the Buyer against Phillips de Pury & Company, any Affiliated Company and the Seller, and is in lieu of any other remedy available as a matter of law. This means that none of Phillips de Pury & Company, any Affiliated Company or the Seller shall be liable for loss or damage beyond the remedy expressly provided in this Authorship Warranty, whether such loss or damage are characterized as direct, indirect, special, incidental or consequential. 7 Bidding in the Auction Online Bids: Online bids are accepted at the client's risk. PHILLIPS de PURY & COMPANY is not responsible for failure or other inadvertent errors relating to execution of your bids. Registration for the sale is required at least 48 hours prior to each sale. Clients must provide billing information, interested lots, bank reference, and signature verifying acceptance of our Terms and Conditions. 8 Estimates For the benefit of international clients, estimates are shown in Pounds Sterling, US$ and Euro. The Pounds Sterling estimates have been converted at the following rates and rounded up: Â£1 = US$ 2.01 Â£1 = Euro 1.47 The sale will be conducted in Pounds Sterling and payment is due in Pounds Sterling. Estimates in US$ and Euro are approximate and for guidance only. 9 Reserve 9.1 All Lots are subject to a Reserve unless otherwise indicated by the symbol Ã¢â‚¬Â¢. The Reserve, which is confidential, is determined by agreement with the Seller and may equal, but will not exceed, the low estimate for the lot. 9.2 The Auctioneer may protect the Reserve by bidding on behalf of the Seller. This means that the Auctioneer may open the bidding on any Lot by placing a bid on behalf of the Seller. The Auctioneer may further bid, on behalf of the Seller, by placing successive or consecutive bids for a Lot, or by placing bids in response to other Bidders up to the amount of the Reserve without indicating that he is doing so and whether or not other bids are placed. 10 Sale Contract Lots shall be sold to the highest Bidder. The contract of sale for the Lot between the Seller and the Buyer shall be made on the fall of the Auctioneer's hammer. 11 Purchase Price 11.1 The purchase price to the Buyer for a Lot shall be (i) the Hammer Price, plus (ii) a Buyer's Premium equal to an amount calculated as 25% of the first Â£10,000 of the Hammer Price of each Lot, (iii) 20% in excess of Â£10,000 up to and including Â£250,000, and 12% on any portion of the Hammer Price in excess of Â£250,000. 11.2 In addition to the Hammer Price and the Buyer's Premium, the Buyer shall pay (i) the Resale Royalty where applicable and (ii) VAT. 11.3 The Resale Royalty payable on the sale of a Lot shall be the sum of the following amounts, being percentage amounts of consecutive portions of the hammer price: 4% of the first Â£50,000, 3% from Â£50,000.01 to Â£200,000, 1% from Â£200,000.01 to Â£350,000, 0.5% from Â£350,000.01 to Â£500,000 and 0.25% on the portion of the hammer price exceeding Â£500,000. However, the total amount of the Resale Royalty on the sale of a Lot shall not exceed Â£12,500. 11.4 VAT is payable in accordance with applicable law. All prices, fees, charges and expenses set out in these Conditions of Sale are quoted ex VAT. 12 Payment SEE PAYMENT INSTRUCTIONS SECTION 13 Ownership And Risk 13.1 Ownership of a Lot shall pass to the Buyer when Phillips de Pury & Company has received from the Buyer in cleared funds: (i) the full purchase price for the Lot; (ii) all other sums due to Phillips de Pury & Company; and (iii) all sums due to Affiliated Companies on any account whatsoever. 13.2 Risk in a Lot shall pass to the Buyer on the earlier of (i) collection of the Lot by the Buyer or (ii) the third Business Day after the date of the auction of the Lot. 14 Removal of Property 14.1 Phillips de Pury & Company will not release a Lot to the Buyer until payment of the Purchase Price of the Lot has been received in full in cleared funds, and no other sums which have become due by the Buyer to Phillips de Pury & Company or any Affiliated Company are outstanding. 14.2 Subject to payment in accordance with Paragraph 12, the Buyer is responsible for collecting purchased Lots at the Buyer's risk and expense within three Business Days of the auction. 14.3 Collection of purchases other than by the Buyer, must be carried out by a person specified on the written direction of the Buyer. 14.4 If Phillips de Pury & Company are on notice of an actual or potential claim in respect of Property in their possession, Phillips de Pury & Company shall not release the Property to the Buyer until they are jointly instructed by the Buyer and the claimant(s) or served with a binding Court order. 14.5 In exceptional circumstances Phillips de Pury & Company may agree in writing that the Buyer may collect a Lot before payment has been made in full. Until ownership of the Lot passes to the Buyer, the Seller remains the owner of the Lot and the Buyer shall not do anything that is inconsistent with the Seller's ownership. The Buyer shall store the Lot separately from all other goods in its possession and marked in such a way that they are clearly identifiable as owned by a third party c/o Phillips de Pury & Company. The Buyer shall insure and keep insured the Lot to its full value against "all risks"Â until the date that ownership in the Lot passes to the Buyer and shall upon reasonable notice provide Phillips de Pury & Company with satisfactory evidence that adequate policies of insurance are being maintained and that the premiums are paid up to date. If the Buyer resells the Lot before Phillips de Pury & Company have received payment in full for it the Buyer shall hold as trustee for Phillips de Pury & Company and the Seller all monies received for the sale of the Lot and not mix them with any other money, nor pay the monies into an overdrawn bank account, but place them in a separate account so as to be identifiable as being in the beneficial ownership of the Seller and Phillips de Pury & Company. The Buyer grants Phillips de Pury & Company, their agents and employees an irrevocable licence at any time to enter any premises where the Lots are or may be stored in order to inspect them or, where Phillips de Pury & Company reasonably believe that the Buyer is in breach of the terms of this Paragraph, to recover them. 15 Transport And Shipping 15.1 Phillips de Pury & Company do not provide packing, handling or shipping services. However, Phillips de Pury & Company will coordinate with shipping agents instructed by the Buyer in order to facilitate the packing, handling and shipping of Property bought at Phillips de Pury & Company. 15.2 All costs and risks in relation to packing, handling, shipping, customs and insurance shall be fully assumed by the Buyer. The costs of such services shall be paid for in advance or promptly reimbursed to Phillips de Pury & Company by the Buyer, at Phillips de Pury & Company's discretion. Phillips de Pury & Company shall not under any circumstances be liable for acts or omissions of packers, handlers, carriers, or others (whether or not Phillips de Pury & Company have introduced them to the Buyer) even if their acts or omissions result in loss or damage to the Property. 15.3 At the request of Buyers, Phillips de Pury & Company will seek quotes for door-to-door transport of purchased Property from shipping agents. The decision to instruct a shipping agent to arrange packing, handling, insurance and shipping is entirely at the Buyer's discretion and their responsibility. 15.4 As a courtesy to Buyers and without additional charge, Phillips de Pury & Company will pack small Lots for collection by Buyers. 15.5 Phillips de Pury & Company do not accept any responsibility for accidental breakages, loss or damage to Lots howsoever caused when being removed by or on behalf of the Buyer unless such breakage, loss or damage is caused by the willful misconduct of Phillips de Pury & Company. 15.6 Any Bidder willfully or accidentally breaking or causing damage to Property will be responsible for any loss or damage. 16 Remedies for Non-Payment Without prejudice to any rights the Seller may have, if the Buyer without prior agreement fails to make payment in cleared funds for a Lot within five Business Days of the auction, Phillips de Pury & Company may in their sole discretion exercise one or more of the following remedies: (a) store the Lot at Phillips de Pury & Company's premises or elsewhere at the Buyer's sole risk and expense; (b) cancel the sale of the Lot; (c) reject future bids from the Buyer or render such bids subject to payment of a deposit; (d) charge interest at 6% per annum above the base rate of the principal bank of Phillips de Pury & Company in London, from the date payment became due to the date the purchase price is received in cleared funds; (e) exercise a lien over any of the Buyer's property which is in the possession of Phillips de Pury & Company. Phillips de Pury & Company shall inform the Buyer of the exercise of any such lien and within 14 days of such notice may arrange the sale of such property and apply the proceeds to the amount owed to Phillips de Pury & Company; (f) resell the Lot by auction or private sale, with estimates and reserves at Phillips de Pury & Company's reasonable discretion. In the event such resale is for less than the original Hammer Price and Buyer's Premium for that Lot, the Buyer will remain liable for the shortfall together with all costs incurred in such resale; (g) commence legal proceedings to recover the Hammer Price and Buyer's Premium for that Lot, together with interest and the costs of such proceedings; or (h) release the name and address of the Buyer to the Seller to enable the Seller to commence legal proceedings to recover the amounts due and legal costs. 17 Failure to Collect Purchases 17.1 If the Buyer pays the Hammer Price and Buyer's Premium but fails to collect a purchased Lot within thirty five days of the auction, the lot will be stored at the Buyer's expense (and risk) at Phillips de Pury & Company's premises or with a third party. 17.2 If a purchased Lot is paid for but not collected within six months of the auction, the Buyer authorises Phillips de Pury & Company, having given notice to the Buyer, to arrange a resale of the item by auction or private sale, with estimates and reserves at Phillips de Pury & Company's reasonable discretion. The proceeds of such sale will be applied to pay for storage charges and any other outstanding costs and expenses owed by the Buyer to Phillips de Pury & Company and Affiliated Companies and the remainder will be forfeited unless collected by the Buyer within two years of the original auction. 18 Rescission by Phillips de Pury & Company Phillips de Pury & Company shall have the right, but not the obligation, to rescind a sale without notice to the Buyer, where they reasonably believe that there is a material breach of the Seller's representations and warranties, or an adverse claim is made by a third party including but not limited to, someone claiming ownership of the Property or a foreign government or governmental agency. Upon notice of Phillips de Pury & Company's election to rescind the sale, the Buyer will promptly return the Property to Phillips de Pury & Company's. Phillips de Pury & Company will then refund the Hammer Price, Buyer's Premium and VAT on the Lot paid to Phillips de Pury & Company. The refund shall constitute the sole remedy and recourse of Buyer against Phillips de Pury & Company and the Seller with respect to such claim. 19 Export And Import Before bidding for any Property, bidders are advised to make their own enquiries as to whether a licence is required to export the Property from the United Kingdom. Bidders are advised that some countries prohibit the import of Property made of or incorporating (irrespective of percentage or age) animal material, such as but not limited to ivory, whalebone, rhinoceros horn or tortoiseshell. Accordingly, prior to bidding, Bidders considering export of the Property should familiarise themselves with relevant export and import regulations of the countries concerned. It is solely the Buyer's responsibility to comply with these laws and to obtain any necessary export, import and endangered species licences and/or permits. Failure to obtain a licence or delay in so doing shall not constitute a basis to cancel a purchase or delay in making payment for a purchase. 20 Private Sales These Conditions of Sale shall also apply to any private sale of Property by Phillips de Pury & Company. 21 Limitation of Liability 21.1 Subject to Paragraph 21.3 below, Phillips de Pury & Company, the Affiliated Companies and the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the sale of a Lot shall be limited to the purchase price actually paid by the Buyer for the Lot. 21.2 Subject to paragraph 21.3 below, none of PHILLIPS de PURY & COMPANY, any affiliated company or the seller shall be liable to the buyer for any loss of profits, loss of business, loss of anticipated savings or for any special, indirect, incidental, or consequential loss, costs, damages, charges or expenses to the fullest extent permitted by law. 21.3 No provision in these Conditions of Sale shall be deemed to exclude or limit Phillips de Pury & Company or any Affiliated Company's liability to the Buyer in respect of any fraud or fraudulent misrepresentation made by them, or in respect of death or personal injury caused by their negligent acts or omissions. 22 Use of Personal Information 22.1 Bidders and Buyers agree that Phillips de Pury & Company may process their personal information which includes: (a) name and contact details and the name and contact details of their employees, agents or representatives; (b) account and financial details; and (c) details of their use of auction and related services. Where the personal information concerns an employee, agent or other representative, Bidders or Buyers will undertake to bring this Paragraph to the attention of that individual and will ensure all relevant consents are given and maintained. 22.2 Phillips de Pury & Company will use personal information of Bidders and Buyers for: (a) providing auction and related services; (b) record keeping for marketing; (c) tax and audit purposes; (d) credit check on Bidders (e) operating and enforcing these Conditions of Sale; (f) transferring Phillips de Pury & Company's business to a purchaser of the business; and (g) resolving legal and regulatory matters. 22.3 Phillips de Pury & Company may disclose this personal information to: (a) legal advisors of any person claiming that any use of services provided by Phillips de Pury & Company infringes any right or breaches any law, rule, regulation or order; (b) professional advisors and other third parties engaged to assist with the sale of Property; and (c) other parties as needed to assist Phillips de Pury & Company in recovering payment or otherwise enforcing a term or condition of this Agreement. 22.4 Phillips de Pury & Company will disclose, share with and transfer personal information to Affiliated Companies for administration and auction related purposes, including to companies outside the European Economic Area where national laws may not provide an equivalent level of information protection to that provided in the United Kingdom. Bidders and Buyers consent to the transfer of personal information to Affiliated Companies outside the European Economic Area. 22.5 Phillips de Pury & Company may use personal information for marketing purposes as may Affiliated Companies but they will not sell, rent or otherwise transfer personal information to third parties. If Bidders and Buyers do not wish Phillips de Pury & Company to use their personal information for marketing purposes thÂey must email Phillips de Pury & Company or Affiliated Companies at email@example.com. Implementation of such opt-out will take place within 30 days of receipt of the email. 23 Dispute Resolution 23.1 These Conditions of Sale and all aspects of all matters, transactions or disputes to which they relate or apply shall be governed by and interpreted in accordance with English law. 23.2 In the event of a dispute arising under or in connection with these Conditions of Sale, Bidders and Buyers irrevocably submit to the exclusive jurisdiction of the English courts for the benefit of the Seller and Phillips de Pury & Company, and Bidders and Buyers agree that the Seller and Phillips de Pury & Company shall have the right to bring proceedings in any Courts within or without England and Wales and waive any objection to the jurisdiction of such Courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum. 24 General 24.1 The rights, powers, privileges and remedies provided in these Conditions of Sale are cumulative and are not exclusive of any rights, powers, privileges or remedies provided by law or otherwise. 24.2 No failure to exercise nor any delay in exercising by any party of any right, power, privilege or remedy under these Conditions of Sale shall impair or operate as a waiver thereof in whole or in part. 24.3 No single or partial exercise of any right, power, privilege or remedy under these Conditions of Sale shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy. 24.4 Should any provision of these Conditions of Sale be held void, invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect. 24.5 These Conditions of Sale are not assignable by any Buyer without Phillips de Pury & Company's prior written consent, but are binding on Buyer's successors, assigns and representatives. 24.6 No term of these Conditions of Sale shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by anyone other than the Buyer. 24.7 Use of any gender includes the other genders, and use of the singular includes the plural and vice-versa. 24.8 The headings in these Conditions of Sale are inserted for convenience only and shall not affect the construction or interpretation of this Agreement. 24.9 These Conditions of Sale set out the entire agreement between Phillips de Pury & Company, Bidders and Buyers in respect of the transactions contemplated herein and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements between Phillips de Pury & Company, Bidders and/or Buyers relating to the subject matter of these Conditions of Sale. 25 Copyright The copyright subsisting in all images and other materials produced for the auction is owned by Phillips de Pury & Company, and, subject to the provisions of the Copyright, Designs and Patents Act 1988, such images and materials may only be used at Phillips de Pury & Company's discretion. For the avoidance of doubt, no rights in or title to the images and other materials produced for the auction shall be transferred to any third party by virtue of the sale of any Property to that third party, or otherwise howsoever. 26 Notices Notices to Phillips de Pury & Company shall be in writing and addressed to the department in charge of the sale, quoting the reference number specified at the beginning of the sale catalogue. Notices to Phillips de Pury & Company's clients shall be addressed to the last address notified by them in writing to Phillips de Pury & Company. 27 Information If you need further information or have any questions about these Conditions of Sale, or any other provisions applicable to a sale, please call +44 20 7318 4010.
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