Midwinter Modern Auction

AUCTIONEER AND AUCTION: 1. This Auction is presented by Capo Auction, Ltd. ("Capo" or "Auctioneer"). The Auction is conducted under these Terms and Conditions of Auction and applicable state and local law. BUYER'S PREMIUM: 2. On bids placed directly through Capo, a Buyer's Premium of twenty-three percent (23%) of the hammer price will be added to the successful bid. A discount of three percent (3%) will be applied to all payments by cash, check, wire transfer or money order if payment is received by Capo Auction within five (5) business days of sale for an effective rate of twenty percent (20%). On bids placed through Live Auctioneers, a Buyer?s Premium of twenty-three percent (23%) of the hammer price will be added to the successful bid. There are no discounts for bids placed through Live Auctioneers. BIDDERS: 3. Any person participating or registering for the Auction ("Bidder(s)") agrees to be bound by and accepts these Terms and Conditions of Auction. 4. All Bidders must meet Auctioneer's qualifications to bid. Any Bidder who is not a customer in good standing of the Auctioneer may be disqualified at Auctioneer's sole option and will not be awarded lots. Such a determination may be made by Auctioneer in its sole and unlimited discretion, at any time prior to, during, or after the close of the Auction. 5. If an entity places a bid, then the person executing the bid on behalf of the entity agrees to personally guarantee payment for any successful bid. 6. Auctioneer reserves the right to exclude any person it deems in its sole opinion is disruptive to the Auction or is otherwise commercially unsuitable. CREDIT REFERENCES: 7. Bidders who do not have established credit with the Auctioneer must either furnish satisfactory credit information (including two antiques-related business references) well in advance of the Auction or supply valid credit card information. Bids placed through online auction sites will only be accepted from pre-registered Bidders; Bidders should pre-register at least two business days before the first session of the auction to allow adequate time to contact references and for approval of the application. BIDDING OPTIONS: 8. Presentment of Bids: Non-Internet bids (including but not limited to podium, fax, phone and mail bids) are treated similar to floor bids in that they must be on-increment or at a half increment (?cut bid?). Any podium, fax, phone, or mail bids that do not conform to a full or half increment will be rounded up or down to the nearest full or half increment and will be considered the bidder?s high bid. 9. Auctioneer's Execution of Certain Bids: Auctioneer cannot be responsible for your errors in bidding, so carefully check that each bid is entered correctly. When identical mail or FAX bids are submitted, preference is given to the first received. To ensure the greatest accuracy, your written bids should be entered on the standard printed bid sheet and be received at Auctioneer's place of business at least two business days before the Auction start. Auctioneer is not responsible for executing mail bids or FAX bids received on or after the day the first lot is sold, nor Internet bids submitted after the published closing time; nor is Auctioneer responsible for proper execution of bids submitted by telephone, mail, FAX, e-mail, Internet, or in person once the Auction begins. The decision of the Auctioneer and declaration of the winning Bidder is final. CONDUCTING THE AUCTION: 10. Notice of the consignor's liberty to place reserve bids on his lots in the Auction is hereby made in accordance with the Uniform Commercial Code. A reserve is an amount below which the lot will not sell. THE CONSIGNOR OF PROPERTY MAY PLACE WRITTEN RESERVE BIDS ON HIS LOTS IN ADVANCE OF THE AUCTION; ON SUCH LOTS, IF THE HAMMER PRICE DOES NOT MEET THE RESERVE, THE CONSIGNOR MAY PAY A REDUCED COMMISSION ON THOSE LOTS. 11. The highest qualified Bidder shall be the buyer. In the event of any dispute between floor Bidders, Auctioneer may at his sole discretion reoffer the lot. Auctioneer's decision shall be final and binding upon all Bidders. 12. Auctioneer reserves the right to refuse to honor any bid or to limit the amount of any bid which, in his sole discretion, is not submitted in "Good Faith," or is not supported by satisfactory credit, references, or otherwise. A bid is considered not made in "Good Faith" when an insolvent or irresponsible person, or a person under the age of eighteen makes it. 13. On the day of the auction, any Bidder who is not a customer in good standing of the Auctioneer will be required to provide a 15% non-refundable deposit for all successful bids of $10,000 or more. Payment may be made by any method accepted by Auctioneer for purchases as described herein. Failure to provide this deposit may disqualify the successful bid at Auctioneer's sole option and the buyer will not be awarded the lot(s) and Auctioneer reserves the right to re-offer the lot at the current or subsequent auction. Such a determination may be made by Auctioneer in its sole and unlimited discretion, at any time during, or after the close of the Auction. NOMINAL BIDS: 14. The Auctioneer may at its sole discretion reject nominal bids, small opening bids or very nominal advances. If a lot fails to open at a satisfactory bid in the Auctioneer?s sole discretion, the Auctioneer may pass the item from the block to be re-offered at a subsequent auction, or may place a protective bid on behalf of the consignor. 15. All items are to be purchased per lot as numerically indicated and no lots will be broken. Auctioneer reserves the right to withdraw, prior to the close, any lots from the Auction. 16. Bids will be accepted in whole dollar amounts only. No "buy" or "unlimited" bids will be accepted. Bidders will be awarded lots at approximately the increment of the next highest bid. No additional commission is charged for executing bids. 17. Auctioneer reserves the right to rescind the sale in the event of nonpayment, breach of a warranty, disputed ownership, auctioneer's clerical error or omission in exercising bids and reserves, or otherwise. 18. The Auctioneer or its affiliates may consign items to be sold in the Auction, and may bid on those lots or any other lots. Auctioneer or affiliates expressly reserve the right to modify any such reserve bids on these items or any others at any time prior to the live auction or the online closing based upon data made known to the Auctioneer or its affiliates. The Auctioneer may extend advances, guarantees, or loans to certain consignors, and may extend financing or other credits at varying rates to certain Bidders in the auction. 19. The Auctioneer has the right to sell certain items after the close of the sale. Items sold by Auctioneer post sale shall be considered sold during the auction and all these Terms and Conditions shall apply to such sales including but not limited to the payment of the buyer's premium, return rights and disclaimers. PAYMENT: 20. All sales are strictly for cash in United States dollars. Cash includes: U.S. currency, bank wire, cashier checks, travelers checks, Credit Cards (Visa, MasterCard, American Express, and Discover), and bank money orders, all subject to reporting requirements. We reserve the right to retain all goods paid for by check until the payment has been cleared. Credit cards will not be accepted for any foreign transactions or total purchases equal to or greater than $5,000 USD. 21. Payment is due upon closing of the Auction session, or upon presentment of an invoice. Auctioneer reserves the right to void an invoice if payment in full of the invoice is not received within 7 days after the close of the Auction. 22. Lots delivered in the State of New York or other states where the Auction may be held, are subject to all applicable state and local taxes, unless appropriate permits are on file with us or presented prior to payment. Bidder agrees to pay Auctioneer the actual amount of tax due in the event that sales tax is not properly collected due to: 1) an expired, inaccurate, inappropriate tax certificate or declaration, 2) an incorrect interpretation of the applicable statute, 3) or any other reason. Lots from different Auctions may not be aggregated for sales tax purposes. 23. In the event that a Bidder's payment is dishonored upon presentment(s), Bidder shall pay the maximum statutory processing fee set by applicable state law. 24. If the Auction invoice(s) submitted by Auctioneer is not paid in full when due, the unpaid balance will bear interest at the highest rate permitted by law from the date of invoice until paid. If the Auctioneer refers the invoice(s) to an attorney for collection, the buyer agrees to pay attorney's fees, court costs, and other collection costs incurred by Auctioneer. If Auctioneer assigns collection to its in-house legal staff, such attorney's time expended on the matter shall be compensated at a rate comparable to the hourly rate of independent attorneys. 25. In the event a successful Bidder fails to pay all amounts due, Auctioneer reserves the right to resell the merchandise, and such Bidder agrees to pay for the reasonable costs of resale, including a 10% seller's commission, and also to pay any difference between the resale price and the price of the previously successful bid. 26. Auctioneer reserves the right to require payment in full in good funds before delivery of the merchandise to the buyer. 27. Auctioneer shall have a lien against the merchandise purchased by the buyer to secure payment of the Auction invoice. Auctioneer is further granted a lien and the right to retain possession of any other property of the buyer then held by the Auctioneer or its affiliates to secure payment of any Auction invoice or any other amounts due the Auctioneer from the buyer. With respect to these lien rights, Auctioneer shall have all the rights of a secured creditor under Article 9 of the Uniform Commercial Code. In addition, with respect to payment of the Auction invoice(s), the buyer waives any and all rights of offset he might otherwise have against the Auctioneer and the consignor of the merchandise included on the invoice. 28. If a Bidder owes Auctioneer or its affiliates on any account, Auctioneer and its affiliates shall have the right to offset such unpaid account by any credit balance due Bidder, and it may secure by possessory lien any unpaid amount by any of the Bidder's property in their possession. 29. Title shall not pass to the successful Bidder until all invoices are paid in full. It is the responsibility of the buyer to provide adequate insurance coverage for the items once they have been delivered. 30. ALL SALES ARE FINAL AND ITEMS ARE PURCHASED AS IS. PICK-UP, DELIVERY, SHIPPING AND HANDLING CHARGES: 31. All purchases must be picked up within five (5) business days. Items left after this time will be placed in a storage facility and the buyer will be charged accordingly. Property removed to offsite facility will be moved at buyer?s risk and expense. 32. All shipping charges will be borne by the successful Bidder. Due to the nature of some items sold, it shall be the responsibility for the successful bidder to arrange pick-up and shipping through third parties, as to such items Auctioneer shall have no liability. Any risk of loss during shipment will be borne by the buyer following Auctioneer's delivery to the designated common carrier, regardless of domestic or foreign shipment. Any request for shipping verification for undelivered packages must be made within 30 days of shipment by Auctioneer. CATALOGING, WARRANTIES AND DISCLAIMERS: 33. NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, IS MADE WITH RESPECT TO ANY DESCRIPTION CONTAINED IN THIS AUCTION OR ANY SECOND OPINION. Any description of the items or second opinion contained in this auction is for the sole purpose of identifying the items for those Bidders who do not have the opportunity to view the lots prior to bidding, and no description of items has been made part of the basis of the bargain or has created any express warranty that the goods would conform to any description made by Auctioneer. All listed measurements are approximate. The term ?sight size? is used herein in instances where the edges of the item are obscured by a frame, matting, or other framing material. 34. Auctioneer is selling only such right or title to the items being sold as Auctioneer may have by virtue of consignment agreements on the date of auction and disclaims any warranty of title to the Property. 35. Translations of foreign language documents are provided as a convenience to interested parties. Capo makes no representation as to the accuracy of those translations and will not be held responsible for errors in bidding arising from inaccuracies in translation. 36. Auctioneer disclaims any warranty of merchantability or fitness for any particular purposes. 37. Auctioneer disclaims all liability for damages, consequential or otherwise, arising out of or in connection with the sale of any property by Auctioneer to Bidder. No third party may rely on any benefit of these Terms and Conditions and any rights, if any, established hereunder are personal to the Bidder and may not be assigned. Any statement made by the Auctioneer is an opinion and does not constitute a warranty or representation. No employee of Auctioneer may alter these Terms and Conditions, and, unless signed by a principal of Auctioneer, any such alteration is null and void. RELEASE: 38. In consideration of participation in the auction and the placing of a bid, a Bidder expressly releases Auctioneer, its officers, directors and employees, its affiliates, and its outside experts that provide second opinions from any and all claims, cause of action, chose in action, whether at law or equity or any arbitration or mediation rights existing under the rules of any professional society or affiliation based upon the assigned grade or a derivative theory, breach of warranty express or implied, representation or other matter set forth within these Terms and Conditions of Auction or otherwise, except as specifically declared herein; e.g., authenticity, typographical error, etc., and as to those matters, the rights and privileges conferred therein are strictly construed and is the exclusive remedy. Purchaser, by non-compliance to its express terms of a granted remedy, shall waive any claim against Auctioneer. DISPUTE RESOLUTION AND ARBITRATION PROVISION: 39. By placing a bid or otherwise participating in the auction, such person or entity accepts these Terms and Conditions of Auction, and specifically agrees to the alternative dispute resolution provided herein. Arbitration replaces the right to go to court, including the right to a jury trial. 40. Auctioneer in no event shall be responsible for consequential damages, incidental damages, compensatory damages, or other damages arising from the auction of any lot. Auctioneer's maximum liability shall not exceed the high bid on that lot, which bid shall be deemed for all purposes the value of the lot. In the event that Auctioneer cannot deliver the lot or subsequently it is established that the lot lacks title, provenance, authenticity, or other transfer or condition issue is claimed, Auctioneer's liability shall be limited to rescission of sale and refund of purchase price. After one year has elapsed, Auctioneer's maximum liability shall be limited to any commissions and fees Auctioneer earned on that lot. 41. Provenance and authenticity are not guaranteed by the Auctioneer. While every effort is made to determine provenance and authenticity, it is up to the Bidder to arrive at that conclusion prior to bidding. 42. If any dispute arises regarding payment, authenticity, grading, description, provenance, or any other matter pertaining to the Auction, the Bidder or a participant in the Auction and/or the Auctioneer agree that the dispute shall be submitted, if otherwise mutually unresolved, to binding arbitration in accordance with the commercial rules of the American Arbitration Association (A.A.A.). A.A.A. arbitration shall be conducted under the provisions of the Federal Arbitration Act with locale in New York City, N.Y. Any claim made by a Bidder has to be presented within one (1) year or it is barred. The prevailing party may be awarded his reasonable attorney's fees and costs. An award granted in arbitration is enforceable in any court of competent jurisdiction. No claims of any kind (except for reasons of authenticity) can be considered after the settlements have been made with the consignors. Any dispute after the settlement date is strictly between the Bidder and consignor without involvement or responsibility of the Auctioneer. 43. In consideration of his participation in or application for the auction, a person or entity (whether the successful Bidder, a Bidder, a purchaser and/or other Auction participant or registrant) agrees that all disputes in any way relating to, arising under, connected with, or incidental to these Terms and Conditions and purchases or default in payment thereof shall be arbitrated pursuant to the arbitration provision. In the event that any matter including actions to compel arbitration, construe the agreement, actions in aid or arbitration or otherwise needs to be litigated, such litigation shall be exclusively in the Courts of the State of New York, in New York County, New York, and if necessary the corresponding appellate courts. The successful Bidder, purchaser, or Auction participant also expressly submits himself to the personal jurisdiction of the State of New York. MISCELLANEOUS: 44. Agreements between Bidders and consignors to effectuate a non-sale of an item at Auction, inhibit bidding on a consigned item to enter into a private sale agreement for said item, or to utilize the Auctioneer's Auction to obtain sales for non-selling consigned items subsequent to the auction, are strictly prohibited. If a subsequent sale of a previously consigned item occurs in violation of this provision, Auctioneer reserves the right to charge Bidder the applicable Buyer's Premium and consignor a Seller's Commission as determined for each auction venue and by the terms of the seller's agreement.