Conditions of Sale
CONDITIONS OF SALE
THESE CONDITIONS GOVERN THIS SALE: This Second Annual Sporting Art Auction ("Sale") is governed by these Conditions of Sale ("Conditions of Sale"), as may be amended by KCG Enterprises, LLC d/b/a The Sporting Art Auction ("KCG") by the posting of notices or by oral announcements made during the Sale from the auctioneer's stand or otherwise (such notices and announcements shall be collectively referred to herein as the "Announcements") (the "Conditions of Sale" and "Announcements" shall be referred to herein as a "Condition," individually, or the "Conditions," collectively, as the context permits). All Sellers, agents, owners, prospective bidders, Purchasers, all other interested parties and all sales are therefore bound by and subject to these Conditions. By participating in the Sale, you acknowledge that you are bound by these Conditions.
Under these Conditions, "Seller" means a person or entity, including such person or entity's agent (other than KCG), successor-in-interest, executor, trustee or personal representative, offering property for sale or selling all or any interest in property sold at this Sale, and is referred to as "Owner" in the Consignment Agreement. "Purchaser" means a person or entity making the highest bid or offer accepted by the auctioneer at the fall of the hammer, and includes such person or entity's principal when bidding as agent.
1. KCG AS AGENT. Except as otherwise stated, KCG acts as agent for the Seller pursuant to the Consignment Agreement. The contract for sale of the property in this Sale is therefore made between the Seller of the property and the Purchaser.
2. PRESALE EXAM. All prospective purchasers and bidders are urged to examine carefully the property in which they may be interested (personally and/or by agents) to determine its condition, size and whether it has been repaired or restored, etc. BEFORE bidding, as they are accepting any property purchased with all faults, including all conditions and defects, except for the Limited Warranty set forth in Condition 9. NEITHER KCG NOR SELLER PROVIDES ANY GUARANTEE OR WARRANTY OF ANY KIND IN RELATION TO THE NATURE OF THE PROPERTY APART FROM THE LIMITED WARRANTY IN CONDITION 9. EXCEPT FOR THE LIMITED WARRANTY IN CONDITION 9, THE PROPERTY IS SOLD "AS IS," WITH ALL FAULTS AND DEFECTS.
3. PRIVACY NOTICE. Notice is hereby given to all participants that KCG may record any or all portions of the Sale by video, audio or other means, which may be used by KCG in its sole discretion. All participants consent to the use, reproduction and distribution of such recordings, biographical and other information or descriptions, and images that may be provided, for inclusion in the catalogue or other marketing of the Sale or for any other advertising or promotional purpose as deemed appropriate by KCG.
4. RIGHT OF EXCLUSION. KCG expressly reserves its common-law right, at its sole discretion, to refuse admission to the premises or participation in any Sale and to reject any bid; provided, however, such refusal shall not be made on the basis of race, creed, color, national origin, sex, political affiliation or beliefs. By accepting the license granted to the public by KCG to attend the Sale, each individual likewise agrees to be bound by these Conditions.
5. CATALOGUE AND DESCRIPTIONS. All statements in the catalogue entry for property, or made orally or in writing elsewhere, are statements of opinion and are not to be relied on as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by KCG of any kind. References in the catalogue entry to damage or restoration are for guidance only and should be evaluated by personal inspection by the bidder or a knowledgeable representative. The absence of such a reference does not imply that an item is free from defects or restoration, nor does a reference to particular defects imply the absence of any others. Estimates of the selling price should not be relied on as a statement that this is the price at which the item will sell or its value for any other purpose. Except for the Limited Warranty set forth in Condition 9, neither KCG nor Seller is responsible in any way for errors and omissions in the catalogue, Announcements, or any supplemental material.
6. BIDDING.
a. BIDDING BY LOT. Unless otherwise stated in these Conditions, all bids are per lot as numbered in this catalogue.
b. DISCLOSURE. In accordance with KRS 355.2-328(4) and other applicable laws, the right to bid in this Sale is reserved for all Sellers, including their disclosed and undisclosed agents, unless otherwise announced at time of Sale. Purchasers therefore agree and acknowledge that Sellers have the right to set reserves implemented by the auctioneer upon property so entered which are not disclosed to Purchasers and also have the right to conduct by-bidding as related to their entries. Sales results reported by KCG may or may not reflect the fair market value of any property going through the Sale.
c. REGISTRATION. A prospective purchaser must complete and sign a Purchaser Registration Form, and such other forms as KCG, in its sole discretion deems appropriate, and provide identification before bidding. KCG, in its sole discretion, may require the production of financial references, guarantees, deposits and/or such other security as KCG deems appropriate.
d. BIDDING AS PRINCIPAL. When making a bid, a bidder is accepting personal liability to pay the entire Purchase Price, which shall mean the aggregate sum of (i) the highest bid recognized by the auctioneer at the fall of the hammer (the "hammer" price), plus (ii) the Buyer's Premium (as hereinafter defined), (iii) all applicable taxes, and (iv) all other applicable charges, which may include, for example, an additional fee and commission when bidding online (the amounts set forth in subparts (i) through (iv) of this paragraph (d) shall be collectively referred to herein as the "Purchase Price"), unless it has been explicitly agreed in writing with KCG before the commencement of the Sale that the bidder is acting as agent on behalf of an identified third party acceptable to KCG, and that KCG will only look to the principal for payment.
e. AUCTIONEER'S DISCRETION. The auctioneer has absolute and sole discretion with respect to bidding, to refuse any bid, to advance the bidding in such a manner as he may decide, to withdraw or divide any lot, to combine any two or more lots, and, in the case of error or dispute, whether during or after the sale, to determine the successful bidder, to continue or re-open the bidding, to cancel the sale or to re-offer and re-sell the item in dispute. If any dispute arises after the sale, KCG's sale record is conclusive. KCG, in its absolute and sole discretion, may execute order or absentee bids and accept telephone bids and online bids and will use commercially reasonable efforts to carry out such bids provided, however, KCG is not responsible for any errors or omissions in connection therewith, and KCG's Conditions control and govern all sales through KCG.
f. BIDDING. KCG RESERVES THE RIGHT TO REJECT ANY BID. Subject to the auctioneer's discretion, as defined in paragraph (e) of this Condition 6, the highest bidder accepted by the auctioneer will be the Purchaser and the striking of the auctioneer's hammer marks the acceptance of the highest bid and the conclusion of a contract for sale between the Seller and the Purchaser.
g. BUYER'S PREMIUM. As part of the Purchase Price, Purchaser agrees to pay to KCG a Buyer's Premium, plus any applicable taxes and fees. The "Buyer's Premium" is fifteen percent (15%) of the hammer price of each lot up to and including $500,000, plus ten percent (10%) of the hammer price of each lot in excess of $500,000 up to and including $1,000,000, plus five percent (5%) of the hammer prices of each lot in excess of $1,000,0000. The parties acknowledge there may also be a Seller's Premium, pursuant to the terms of the Consignment Agreement.
h. RESERVE. Lots in this catalogue may be offered subject to a reserve, which is the confidential minimum hammer price below which the lot will not be sold. No reserve will exceed the low presale estimate stated in the catalogue, or as may be amended by the Announcements. KCG may implement such reserve by opening the bidding on behalf of the Seller and may bid up to the amount of the reserve, by placing successive or consecutive bids for a lot, or bids in response to other bidders. In instances where KCG has an interest in the lot other than its commission, it may bid up to the reserve to protect such interest.
7. OBLIGATIONS OF PURCHASER.
a. PAYMENT OF PURCHASE PRICE. Subject to fulfillment of all of the conditions set forth herein, on the fall of the auctioneer's hammer, the contract between the Seller and the Purchaser is concluded, and the Purchaser thereupon will immediately pay the Purchase Price to KCG. Title and risk of loss in a purchased lot (including frames or glass where relevant) will not pass until KCG has received the full Purchase Price in cleared funds. KCG is not obligated to release a lot to the Purchaser until title to the lot has passed and any earlier release does not affect the passing of title or the Purchaser's unconditional obligation to pay the Purchase Price. In addition to other remedies available to KCG by law, KCG reserves the right to impose from the date of Sale a late charge of eighteen percent (18%) of the total Purchase Price per annum if payment is not made within seven (7) days from the date of the Sale.
b. REMOVAL OF PURCHASED PROPERTY. Unless otherwise agreed by KCG, all property must be removed from KCG's premises by the Purchaser at Purchaser's expense not later than fourteen (14) calendar days following the Sale. KCG's liability for loss or damage to sold property shall cease no later than fourteen (14) calendar days after the Sale. If any applicable conditions herein are not complied with by the Purchaser, the Purchaser will be in default and in addition to any and all other remedies available to KCG and Seller by law, including, without limitation, the right to hold the Purchaser liable for the total Purchase Price. KCG, at its option, may (i) cancel the sale of that, or any other lot or lots sold to the defaulting purchaser at the same or any other auction, retaining as liquidated damages all payments made by the Purchaser, (ii) resell the purchased property, whether at public auction or by private sale, or (iii) effect any combination thereof. In any case, the Purchaser will be liable for any deficiency, any and all costs, handling charges, late charges, expenses of both sales, KCG's commissions on both sales at KCG's regular rates, legal fees and expenses, collection fees and incidental damages. KCG may, in its sole discretion, apply any proceeds of sale then due or thereafter becoming due to the Purchaser from KCG, or any payment made by the Purchaser to KCG, whether or not intended to reduce the Purchaser's obligations with respect to the unpaid lot or lots, to the deficiency and any other amounts due to KCG. In addition, each Purchaser grants and assigns to KCG a continuing security interest of first priority in any property or money of or owing to such Purchaser in KCG's possession or in the possession of any of its affiliated companies, and KCG may retain and apply such property or money as collateral security for the obligations due to KCG. KCG shall have all of the rights accorded a secured party under the Kentucky Uniform Commercial Code. KCG may file financing statements under the Kentucky Uniform Commercial Code (or any such applicable uniform commercial code if Purchaser is not a resident of Kentucky). Any claims relating to any purchase, including any claims under the Conditions, must be presented directly to KCG. In the event the Purchaser fails to pay any or all of the total Purchase Price for any lot and KCG nonetheless elects to pay the Seller any portion of the sale proceeds, the Purchaser acknowledges that KCG shall have all of the rights of the Seller to pursue the Purchaser for any amounts paid to the Seller, whether at law, in equity, or under these Conditions.
c. PACKING, SHIPPING AND INSURANCE. The Purchaser is solely responsible for packing, shipping and insuring (including reimbursement for damage or loss) purchased lots and will bear all costs associated therewith. KCG is not responsible for the acts or omissions in the packing or shipping of purchased lots. Packing, shipping and insuring purchased lots is at the entire risk of the Purchaser. Purchaser is responsible for obtaining adequate insurance coverage for any purchased lot(s) as of the fall of the hammer. Insurance costs through third-party carriers will be borne by the Purchaser and, in case of damage, insurance claims should be made to the third-party carriers.
8. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9, THERE IS NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO ANY PROPERTY OR ANY DESCRIPTION THEREOF, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES BY KCG OR SELLER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE CORRECTNESS OF THE CATALOGUE OR OTHER DESCRIPTION OF THE PHYSICAL CONDITION, SIZE, QUALITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITIONS, LITERATURE OR HISTORICAL RELEVANCE OF ANY PROPERTY. NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE IN THE CATALOGUE, AN ADVERTISEMENT, A SALESROOM POSTING OR ANNOUNCEMENT, OR ELSEWHERE, SHALL BE DEEMED SUCH A WARRANTY, REPRESENTATION OR ASSUMPTION OF LIABILITY. KCG AND SELLER MAKE NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO WHETHER THE PURCHASER ACQUIRES ANY COPYRIGHTS OR LICENSES, INCLUDING BUT NOT LIMITED TO, ANY REPRODUCTION RIGHTS IN ANY PROPERTY. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9 KCG IS NOT RESPONSIBLE FOR ERRORS AND OMISSIONS IN THE CATALOGUE, GLOSSARY, OR ANY SUPPLEMENTAL MATERIAL. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9, ALL SALES ARE MADE AS IS, WITH ALL FAULTS.
9. LIMITED WARRANTY OF AUTHORSHIP. As set forth below and in the Conditions of Sale and Announcements, KCG guarantees that the authorship, period, culture or origin (collectively "Authorship") is as set out in the BOLD or CAPITALIZED type heading in the catalogue description of the lot, as may be amended by the Announcements ("Authorship Limited Warranty"). KCG, in its reasonable discretion, shall determine whether the conditions for return of the property based on breach of the Authorship Limited Warranty have been satisfied. If so, KCG will refund the original Purchaser of record the Purchase Price. This Authorship Limited Warranty does not apply if: (i) the catalogue description was in accordance with the opinion(s) of generally accepted scholar(s) and expert(s) at the date of the sale, or the catalogue description indicated that there was a conflict of such opinions; or (ii) the only method of establishing that the Authorship was not as described in the Bold or Capitalized heading at the date of the Sale would have been by means or processes not then generally available or accepted, unreasonably expensive or impractical to use or likely (in KCG's reasonable opinion) to have caused damage to the lot or likely to have caused loss of value to the lot; or (iii) there has been no material loss in value of the lot from its value had it been in accordance with its description in the Bold or Capitalized type heading. This Guarantee is provided for a period of one (1) year from the date of the relevant auction, is solely for the benefit of the original Purchaser of record at the auction and may not be transferred to any third party. To be able to claim under this Authorship Limited Warranty, the original Purchaser of record must: (i) notify KCG in writing within three (3) months of receiving any information that causes the original Purchaser of record to question the accuracy of the Bold or Capitalized type heading, specifying the lot number, date of the Sale at which it was purchased and the reasons for such question; and (ii) return the lot to KCG at the original selling location in the same condition as at the date of the Sale to the original Purchaser of record and be able to transfer good title to the lot, free from any third party claims arising after the date of the Sale. KCG has discretion to waive any of the above requirements. KCG may require the original Purchaser of record to obtain at the original Purchaser of record's cost the reports of two (2) independent and recognized experts in the field, mutually acceptable to KCG and the original Purchaser of record. KCG shall not be bound by any reports produced by the original Purchaser of record, and reserves the right to seek additional expert advice at its own expense. It is specifically understood and agreed that the rescission of a Sale and the refund of the original Purchase Price paid is exclusive and in lieu of any other remedy which might otherwise be available as a matter of law, or in equity. KCG and the Seller shall not be liable for any incidental or consequential damages incurred or claimed, including without limitation, attorneys' fees, loss of profits or interest.
10. DISCLAIMER OF IMPLIED DUTIES. KCG shall endeavor to protect the interests of all parties, but the duties and obligations of KCG to such persons shall be strictly limited to those expressly imposed upon KCG by these Conditions. All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon KCG by operation of law, are hereby expressly disclaimed, except that KCG shall be required to exercise that standard of care generally exercised by other comparable art auction companies.
11. RIGHT TO WITHDRAW. KCG retains the right to withdraw any property at any time before the sale for any reason in its sole discretion. KCG shall have no liability whatsoever for such withdrawal.
12. MISCELLANEOUS.
a. COPYRIGHT. The copyright in all images, illustrations and written material produced by or for KCG relating to a lot, including the contents of the catalogue, is and shall remain at all times the property of KCG and shall not be used by the Purchaser, or by anyone else, without prior written consent.
b. SEVERABILITY. The invalidity or unenforceability of any provision of these Conditions of Sale shall not affect the validity or enforceability of any other provision hereof, and any such invalid or unenforceable provision shall be deemed to be severable.
c. TAXES. Unless otherwise exempted by law, the Purchaser will be required to pay any Kentucky sales and use tax, any applicable compensating use tax of another state, and, if applicable, any federal luxury or other tax on the total Purchase Price.
d. MERGER OF AGREEMENT. The Seller, owner, or KCG may have made oral statements or published advertisements concerning the condition of the property described in this catalogue or this sale generally. Such statements or advertisements do not constitute warranties, shall not be relied upon by the Purchasers and are not part of the contract for sale. The entire contract of sale is embodied in these Conditions of Sale, the Announcements, and with respect to the Seller, the Consignment Agreement. These aforementioned documents constitute the final expression of the parties' agreement, and are a complete and exclusive statement of that agreement. Notwithstanding the above, Seller, owner and Purchaser may enter into an agreement which modifies the limited warranties as provided herein; however, any such action by the Seller, owner and Purchaser cannot and shall not modify or alter the duties, responsibilities and rights of KCG as provided in these Conditions and the Consignment Agreement.
e. FORCE MAJEURE. The lack of performance hereunder by KCG shall be excused without liability if the failure to perform is due to an act of God, fire, casualty, act or decision of a governmental authority, injunction, strike or labor dispute, or any other cause beyond the control of KCG. The invalidity or unenforceability of any provision of these Conditions shall not affect the validity or enforceability of any other provision hereof, and any such invalid or unenforceable provision shall be deemed to be severable.
f. HEADINGS. The descriptive headings of these Conditions of Sale are inserted for convenience only and shall not constitute a part of these Conditions of Sale.
g. LIMITATION OF ACTION. Any cause of action arising out of the purchase and sale of any property at this Sale, whether it is based in contract or tort, shall be commenced not more than one (1) year after the sale or be forever barred. Provided, however, this limitation of action shall not apply to an action for the recovery from the Purchaser of the Purchase Price, plus interest and expenses, and including repossession of the property purchased at this Sale.
h. GOVERNING LAWS; VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. The laws of the Commonwealth of Kentucky shall govern the construction of these Conditions and the rights, remedies and duties of the parties hereto. In the event of any litigation arising out of these Conditions or the transactions contemplated hereby, the parties agree that any action or suit shall be brought in a court of record in the County of Fayette, Commonwealth of Kentucky, or in the United States District Court for the Eastern District of Kentucky, and the parties hereby consent to the venue and jurisdiction of such courts. The owner, Seller, Purchaser and KCG and their respective agents, voluntarily and intentionally waive any right that they may have to a trial by jury in respect to any litigation arising from or connected with this sale.
i. LIMITATION OF LIABILITY. In no event will KCG's liability to a Purchaser exceed the purchase price actually paid.
j. PERSONAL INFORMATION. By agreeing to these Conditions, parties agree to the processing of their personal information and also to the disclosure and transfer of such information to any KCG affiliate and to third parties anywhere in the world for the above purposes, including to countries which may not offer equivalent protection of personal information to that offered in the United States. Parties can prevent the use of their personal information for marketing purposes at any time by notifying KCG.
k. NO WAIVER. The failure of KCG to exercise or enforce any right or provision of these Conditions shall not constitute a waiver of such right or provision, and no waiver of any term of these Conditions shall be deemed a further or continuing waiver of such term or any other term.
