Great American West Art Auction

TERMS & CONDITIONS Auctioneer and Auction: 1. This Auction is presented by Great American West Art Auction, a d/b/a/ of Great American West, LLC (?Auctioneer?). The Auction is conducted under these Terms and Conditions and applicable state and local law. Announcements and corrections from the podium and those made through the Terms and Conditions appearing on the Internet at greatamericanwestartauction.com supersede those in the printed catalog. Buyer?s Premium: 2. All bids are subject to a Buyer?s Premium of ten percent (10%) which is in addition to the placed successful bid otherwise defined as the hammer price. Bidders: 3. Any person participating or registering for the Auction agrees to be bound by and accepts these Terms and Conditions (?Bidder(s)?). 4. All Bidders must meet Auctioneer?s qualifications to bid. Any Bidder who is not a client in good standing of the Auctioneer may be disqualified at Auc- tioneer?s sole option and will not be awarded lots. Such determination may be made by Auctioneer in its sole and unlimited discretion, at any time prior to, during, or even after the close of the Auction. Auctioneer reserves the right to exclude any person from 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. Credit: 6. In order to place bids, Bidders who have not established credit with the Auctioneer must either furnish satisfactory credit information (including two collectibles-related business references) or supply valid credit card information along with a social security number, well in advance of the Auction. Bidders should preregister at least two business days before the start of the Auction (exclusive of holidays or weekends) to allow adequate time to contact references. Credit will be granted at the discretion of Auctioneer. Additionally Bidders who have not previously established credit or who wish to bid in excess of their established credit history may be required to provide their social security number or the last four digits thereof so a credit check may be performed prior to Auctioneer?s acceptance of a bid. Check writing privileges and immediate delivery of merchandise may also be determined by pre-approval of credit based on a combination of criteria: Auctioneer history, related industry references, bank verification, a credit bureau report and/or a personal guarantee for a corporate or partnership entity in advance of the auction venue. Bidding Options: 7. 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 (called a 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 this revised amount will be considered your high bid. 8. Auctioneer?s Execution of Certain Bids. Auctioneer cannot be responsible for your errors in bidding, so carefully check that every 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. Bids placed electronically via the Internet may not be withdrawn until your written request is received and acknowledged by Auctioneer (FAX: 817-416-2611); such requests must state the reason, and may constitute grounds for withdrawal of bidding privileges. Lots won by mail Bidders will not be delivered at the Auction unless prearranged. 9. Caveat as to Bid Increments. Bid increments (over the current bid level) determine the lowest amount you may bid on a particular lot. Bids greater than one increment over the current bid can be any whole dollar amount. It is possible under several circumstances for winning bids to be between increments, sometimes only $1 above the previous increment. Bids will be accepted in whole dollar amounts only. No ?buy? or ?unlimited? bids will be accepted. The following chart governs current bidding increments: Current Bid Bid Increment Under $2,000.....................................$100 $2,000 - $4,999..................................$200 $5,000 - $9,999..................................$500 $10,000 - $19,999 ..........................$1,000 $20,000 - $49,999 ..........................$2,000 $50,000 - $99,999 ..........................$5,000 $100,000 - $199,999 ....................$10,000 $200,000 - $499,999 ....................$20,000 $500,000 - $999,999 ....................$50,000 $1,000,000 - $4,999,999 ............$100,000 Over $5,000,000 .........................$250,000 10. If Auctioneer calls for a full increment, a bidder may request Auctioneer to accept a bid at half of the increment (?Cut Bid?) only once per lot. After offering a Cut Bid, bidders may continue to participate only at full increments. If the Auctioneer solicits bids other than the expected increment, these bids will not be considered Cut Bids. Conducting the Auction: 11. The highest qualified Bidder recognized by the Auctioneer shall be the Buyer. In the event of a tie bid, the earliest bid received or recognized wins. In the event of any dispute between any Bidders at an Auction, Auctioneer may at his sole discretion reoffer the lot. Auctioneer?s decision and declaration of the winning Bidder shall be final and binding upon all Bidders. Bids properly offered, whether by floor Bidder or other means of bidding, may on occasion be missed or go unrecognized; in such cases, the Auctioneer may declare the recognized bid accepted as the winning bid, regardless of whether a competing bid may have been higher. Auctioneer reserves the right after the hammer falls to accept bids and reopen bidding for bids placed through the Internet or otherwise. 12. Auctioneer reserves the right to refuse to honor any bid or to limit the amount of any bid, in its sole discretion. A bid is considered not made in ?Good Faith? when made by an insolvent or irresponsible person, a person under the age of eighteen, or is not supported by satisfactory credit, collectibles ref- erences, or otherwise. Regardless of the disclosure of his identity, any bid by a consignor or his agent on a lot consigned by him is deemed to be made in ?Good Faith.? Any person apparently appearing on the OFAC list is not eligible to bid. 13. Nominal Bids. The Auctioneer in its sole discretion may reject nominal bids, small opening bids, or very nominal advances. If a lot bearing estimates fails to open for 40?60% of the low estimate, the Auctioneer may pass the item or may place a protective bid on behalf of the consignor. 14. Lots bearing bidding estimates shall open at Auctioneer?s discretion (approximately 50%-60% of the low estimate). In the event that no bid meets or exceeds that opening amount, the lot shall pass as unsold. 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. 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 for any other reason and in Auctioneer?s sole discretion. In cases of nonpayment, Auctioneer?s election to void a sale does not relieve the Bidder from their obligation to pay Auctioneer its fees (seller?s and buyer?s premium) and any other damages or expens- es pertaining to the lot. 17. Auctioneer occasionally experiences Internet and/or Server service outages, and Auctioneer periodically schedules system downtime for mainte- nance and other purposes, during which Bidders cannot participate or place bids. If such outages occur, we may at our discretion extend bidding for the Auction. Bidders unable to place their Bids through the Internet are directed to contact the Auctioneer at (817-416-2600). 18. The Auctioneer, its affiliates, or their employees 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 bids at any time prior to the hammer based upon data made known to the Auctioneer or its affili- ates. The Auctioneer may extend advances, guarantees, or loans to certain consignors. 19. The Auctioneer has the right to sell certain unsold items after the close of the Auction. Such lots shall be considered sold during the Auction and all these Terms and Conditions shall apply to such sales including but not limited to the Buyer?s Premium, return rights, and disclaimers. Payment: 20. All sales are strictly in United States dollars and accepted methods of payment include U.S. currency, bank wire, cashier checks, traveler?s checks, eChecks, and bank money orders, and are subject to all reporting requirements. Authorized Mastercard, Visa and Discover credit card payments are also accepted with the convenience fee charge of 3% added to the total purchase amount (hammer price plus Buyer?s premium). All deliveries are subject to good funds; funds being received in Auctioneer?s account before delivery of the Purchases; and all payments are subject to a clearing period. Auctioneer reserves the right to determine if a check constitutes ?good funds?: checks drawn on a U.S. bank are subject to a ten business day hold, and thirty days when drawn on an international bank. Clients with pre-arranged credit status may receive immediate credit for payments via eCheck, person- al, or corporate checks. All others will be subject to a hold of five (5) days, or more, for the funds to clear prior to releasing merchandise. 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 is not received within seven (7) days after the close of the Auction. In cases of nonpayment, Auctioneer?s election to void a sale does not relieve the Bidder from their obligation to pay Auctioneer its fees (seller?s and buyer?s premium) on the lot and any other damages pertaining to the lot or Auctioneer, at its option, may charge a twenty (20%) restock fee on the amount of the purchase and offset the restock fee against any monies paid to the Auctioneer or against any of the purchaser?s properties held by the Auctioneer. 22. Lots delivered to you, or your representative, are subject to all applicable state and local taxes, unless appropriate permits are on file with Auctioneer. 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, or in- appropriate tax certificate or declaration, 2) an incorrect interpretation of the applicable statute, 3) or any other reason. The appropriate form or certificate must be on file at and verified by Auctioneer five (5) days prior to Auction, or tax must be paid; only if such form or certificate is received by Auctioneer within four (4) days after the Auction can a refund of tax paid be made. 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. If you attempt to pay via eCheck and your financial institution denies this transfer from your bank account, or the payment cannot be complet- ed using the selected funding source, you agree to complete payment using your credit card on file. 24. If any Auction invoice 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. Any invoice not paid when due will bear a three percent (3%) late fee on the invoice amount. If the Auctioneer refers any invoice to an attorney for collection, the buyer agrees to pay attorney?s fees, court costs, and other collection costs incurred by Auctioneer. 25. In the event a successful Bidder fails to pay any amounts due, Auctioneer reserves the right to sell the lot(s) securing the invoice to any under-bid- ders in the Auction that the lot(s) appeared, or at subsequent private or public sale, or relist the lot(s) in a future auction conducted by Auctioneer. A defaulting Bidder agrees to pay for the reasonable costs of resale (including a 10% seller?s commission, if consigned to an auction conducted by Auctioneer). The defaulting Bidder is liable to pay any difference between his total original invoice for the lot(s), plus any applicable interest, and the net proceeds for the lot(s) if sold at private sale or the subsequent hammer price of the lot(s) less the 10% seller?s commissions, if sold at an Auctioneer?s auction. 26.Auctioneer reserves the right to require payment in full in good funds before delivery of the merchandise. 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 or affiliates from the buyer. With respect to these lien rights, Auctioneer shall have all the rights of a se- cured creditor under Article 9 of the Texas Uniform Commercial Code, including but not limited to the right of sale (including a 10% seller?s commission, if consigned to an auction conducted by Auctioneer). 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. 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. 28. 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 cover- age for the items once they have been delivered to a common carrier or third-party shipper. Delivery, Shipping and Handling Charges: 29. Buyer is liable for shipping, handling, registration, and renewal fees, if any. Lots won will be shipped in a commercially reasonable time after payment in good funds for the merchandise and the shipping fees are received or credit extended, except when third-party shipment occurs. Buyer agrees that Service and Handling charges related to shipping items which are not pre-paid may be charged to the credit card on file with Auctioneer. 30. Successful international Bidders shall provide written shipping instructions, including specified customs declarations, to the Auctioneer for any lots to be delivered outside of the United States. NOTE: Declaration value shall be the item?(s) hammer price together with its buyer?s premium and Auction- eer shall use the correct harmonized code for the lot. Domestic Buyers on lots designated for third-party shipment must designate the common carrier, accept risk of loss, and prepay shipping costs. 31. All shipping charges will be borne by the successful Bidder. On all domestic shipments, any risk of loss during shipment will be borne by the Auction- eer until the shipping carrier?s confirmation of delivery to the address of record in Auctioneer?s file (carrier?s confirmation is conclusive to prove delivery to Bidder; if the client has a Signature release on file with the carrier, the package is considered delivered without Signature) or delivery by the Auctioneer to Bidder?s selected third-party shipper. On all foreign shipments, any risk of loss during shipment will be borne by the Bidder following Auctioneer?s delivery to the Bidder?s designated common carrier or third-party shipper. 32. 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. Failure to pick-up or arrange shipping in a timely fashion (within ten days) shall subject Lots to storage and moving charges, including a $100 administration fee plus $10 daily storage for larger items and $5.00 daily for smaller items (storage fee per item) after 35 days. In the event the Lot is not removed within ninety days, the Lot may be offered for sale to recover any past due storage or moving fees, including a 10% Seller?s Commission. 33. Auctioneer shall not be liable for any loss caused by or resulting from: a. Seizure or destruction under quarantine or Customs regulation, or confisca- tion by order of any Government or public authority, or risks of contraband or illegal transportation of trade, or b. Breakage of statuary, marble and similar fragile articles. 34. Any request for shipping verification for undelivered packages must be made within 30 days of shipment by Auctioneer. Cataloging, Warranties and Disclaimers: 35. NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, IS MADE WITH RESPECT TO ANY DESCRIPTION CONTAINED IN THIS AUCTION OR ANY SECOND OPINE. Any description of the items or second opine 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. Color variations can be expected in any elec- tronic or printed imaging, and are not grounds for the return of any lot. NOTE: Auctioneer may have express written warranties and you are referred to those specific terms and conditions. 36. 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. Auctioneer disclaims any warranty of merchantability or fitness for any particular purposes. All images, descriptions, sales data, and archival records are the exclusive property of Auctioneer, and may be used by Auctioneer for advertising, promo- tion, archival records, and any other uses deemed appropriate. 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. 38. Auctioneer shall not be liable for breakage of glass or damage to frames (patent or latent); such defects, in any event, shall not be a basis for any claim for return or reduction in purchase price. Release: 39. In consideration of participation in the Auction and the placing of a bid, Bidder expressly releases Auctioneer, its officers, directors and employees, its affiliates, and its outside experts that provide second opines, from any and all claims, cause of action, chose of 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 description, or a derivative theo- ry, breach of warranty express or implied, representation or other matter set forth within these Terms and Conditions or otherwise. In the event of a claim, Bidder agrees that such rights and privileges conferred therein are strictly construed as specifically declared herein; e.g., authenticity, typographical er- ror, etc. and are the exclusive remedy. Bidder, by non-compliance to these express terms of a granted remedy, shall waive any claim against Auctioneer. Dispute Resolution and Arbitration Provision: 40. By placing a bid or otherwise participating in the auction, Bidder accepts these Terms and Conditions, and specifically agrees to the dispute resolu- tion provided herein. Consumer disputes shall be resolved through court litigation which has an exclusive Dallas, Texas venue clause and jury waiver. Non-consumer dispute shall be determined in binding arbitration which arbitration replaces the right to go to court, including the right to a jury trial. 41. Auctioneer in no event shall be responsible for consequential damages, incidental damages, compensatory damages, or any other damages arising or claimed to be arising from the auction of any lot. In the event that Auctioneer cannot deliver the lot or subsequently it is established that the lot lacks title, or other transfer or condition issue is claimed, in such cases the sole remedy shall be limited to rescission of sale and refund of the amount paid by Bidder; in no case shall Auctioneer?s maximum liability exceed the high bid on that lot, which bid shall be deemed for all purposes the value of the lot. After one year has elapsed, Auctioneer?s maximum liability shall be limited to any commissions and fees Auctioneer earned on that lot. 42. In the event of an attribution error, Auctioneer may at its sole discretion, correct the error on the Internet, or, if discovered at a later date, to refund the buyer?s purchase price without further obligation. 43. Exclusive Dispute Resolution Process: All claims, disputes, or controversies in connection with, relating to and /or arising out of your Participation in the Auction or purchase of any lot, any interpretation of the Terms and Conditions or any amendments thereto, any description of any lot or condition report, any damage to any lot, any alleged verbal modification of any term of sale or condition report or description and/or any purported settlement whether asserted in contract, tort, under Federal or State statute or regulation or any claim made by you of a lot or your Participation in the auction in- volving the auction or a specific lot involving a warranty or representation of a consignor or other person or entity including Auctioneer { which claim you consent to be made a party} (collectively, ?Claim?) shall be exclusively heard by, and the claimant (or respondent as the case may be) and Auctioneer each consent to the Claim being presented in a confidential binding arbitration before a single arbitrator administrated by and conducted under the rules of, the American Arbitration Association. The locale for all such arbitrations shall be Dallas, Texas. The arbitrator?s award may be enforced in any court of competent jurisdiction. If a Claim involves a consumer, exclusive subject matter jurisdiction for the Claim is in the State District Courts of Dallas County, Texas and the consumer consents to subject matter and in personam jurisdiction; further CONSUMER EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY. A consumer may elect arbitration as specified above. Any claim involving the purchase or sale of numismatic or related items may be submitted through binding PNG arbitration. Any Claim must be brought within two (2) years of the alleged breach, default or misrepresentation or the Claim is waived. Exemplary or punitive damages are not permitted and are waived. A Claim is not subject to class certification. Nothing herein shall be construed to extend the time of return or conditions and restrictions for return. This Agreement and any Claim shall be determined and construed under Texas law. The prevailing party (a party that is awarded substantial and material relief on its damage claim based on damages sought vs. awarded or the successful defense of a Claim based on damages sought vs. awarded) may be awarded its reasonable attorneys? fees and costs. 44. No claims of any kind 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. 45. In consideration of their 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 Texas, in Dallas County, Texas, and if necessary the corresponding appellate courts. For such actions, the successful Bidder, purchaser, or Auction participant also expressly submits himself to the personal jurisdiction of the State of Texas. 46. These Terms and Conditions provide specific remedies for occurrences in the auction and delivery process. Where such remedies are afforded, they shall be interpreted strictly. Bidder agrees that any claim shall utilize such remedies; Bidder making a claim in excess of those remedies provided in these Terms and Conditions agrees that in no case whatsoever shall Auctioneer?s maximum liability exceed the high bid on that lot, which bid shall be deemed for all purposes the value of the lot. Miscellaneous: 47. 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. 48. Acceptance of these Terms and Conditions qualifies Bidder as a client who has consented to be contacted by Auctioneer in the future. In conformity with ?do-not-call? regulations promulgated by the Federal or State regulatory agencies, participation by the Bidder is affirmative consent to being con- tacted at the phone number shown in his application and this consent shall remain in effect until it is revoked in writing. Auctioneer may from time to time contact Bidder concerning sale, purchase, and auction opportunities available through Auctioneer and its affiliates and subsidiaries. 49. Rules of Construction: Auctioneer presents properties in a number of collectible fields, and as such, specific venues have promulgated supplemental Terms and Conditions. Nothing herein shall be construed to waive the general Terms and Conditions by these additional rules and shall be construed to give force and effect to the rules in their entirety. State Notice: Notice as to an Auction in Texas. In compliance with TDLR rule 67.100(c)(1), notice is hereby provided that this auction is covered by a Recovery Fund administered by the Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711 (512) 463-6599. Any complaints may be directed to the same address.