Term and Conditions of Sale
Terms and Conditions of Sale
The lots listed in this catalogue will be offered by The Modern Art Exchange, LLC as owner or as agent for consignor(s) subject to the following Terms and Conditions of Sale, as supplemented in writing or otherwise by us at any time prior to the sale. By registering to bid at the auction, or by placing a bid through any means, you agree to be bound by these Terms and Conditions of Sale.
In these Terms and Conditions of Sale, 'we,' 'us,' 'our,' 'The Modern Art Exchange,' the gallery, or similar terms mean The Modern Art Exchange, LLC and any of its agents, and 'you,' 'your,' 'buyer' or similar terms mean a person bidding on or buying property.
1. Examination of Property
Except as stated under 'Limited Warranty' in paragraph 13 below, all property is sold 'as is,' with no representation or warranty of any kind from The Modern Art Exchange or the consignor. Because buyers are responsible for satisfying themselves as to condition or any other matter concerning the property, they are advised to personally examine any property on which they intend to bid prior to the auction. As a courtesy, a condition report for any lot is available from The Modern Art Exchange prior to the sale, but The Modern Art Exchange assumes no responsibility for errors and omissions contained in the catalogue or in any such report provided at the request of a buyer. Any statements made in this catalogue or in any condition report, whether orally or in writing, are intended as statements of opinion only, are not to be relied upon as statements of fact and do not constitute representations or warranties of any kind.
The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging.
This in an online-only auction. If a person wishes to see an item in person an appointment can be made up to the day before the auction. Appointments to view items must be made several days in advance. Call for an appointment 510-350-8875. All items are located in Oakland, CA. Condition reports and more detailed photographs are available for all items. Email or call and the gallery will send information and photographs via email.
2. Bidding at Auction
All prospective bidders are required to register with us in advance of the sale. We may require photo identification and bank references for registration. By bidding at the auction, a buyer assumes personal responsibility to pay the purchase price bid, including the buyer's premium, all applicable taxes, plus any additional charges that become due and payable in connection with the purchase of the property. Upon the fall of the auctioneer's hammer, the buyer assumes all risk of loss and damage to the property, in addition to any obligations, costs and expenses relating to the handling, shipping, insurance, taxes and export of the property.
The auction is being conducted as an online-only auction through Invaluable. We do not accept liability for equipment failure, inability to access the internet, internet malfunctions or software malfunctions related to the execution of online bids.
3. The Right to Withdraw Lots
We reserve the right to withdraw any lot before the sale and shall have no liability whatsoever for such withdrawal.
4. Payment for Purchases
a. Buyer's Premium
In addition to the hammer price, the buyer agrees to pay The Modern Art Exchange, LLC a buyer's premium added to the final total.
b. California Sales Tax
Sales tax of 9.25% will be collected on all purchases removed from our premises or delivered within the state of California. Those holding a valid California State Resale
License must register before each sale and present their valid resale number. No purchases will be released until all sales tax requirements are satisfied.
c. The Purchase of and Payment for Property
The sale of a lot shall be to the highest bidder as determined by the auctioneer, in accord with these Terms and Conditions of Sale. Title to the lot shall pass with the fall of the Auctioneer's hammer and buyer assumes all liability for said lot(s) including insurance and damage at that time. Sale is not final and property will not be released to buyer until good funds for all amounts due, are received by The Modern Art Exchange.
The buyer must pay the entire amount due including the hammer price, buyer's premium, all applicable taxes and other charges no later than 5 p.m. on the seventh (7) business day following the sale. All payments must be made in US Dollars, in any of the following acceptable forms of payment:
- Personal check or cashiers check drawn on a US bank (Personal checks will be acceptable only if credit has been established with The Modern Art Exchange or if a bank authorization has been received guaranteeing a personal check.)
- Money order
- Wire Transfer ($35 fee)
- Visa, MasterCard, PayPal, Discover Card or American Express, with a surcharge for any such payment as follows:
---Buyers inside the United States: 3% surcharge of total amount due
---Buyers outside of the United States: 4% surcharge of total amount due
The Modern Art Exchange reserves the right to hold any property purchased by personal check until the check has cleared the bank. The purchaser agrees to pay The Modern Art Exchange a handling charge of $50 for any check dishonored by the drawee.
As security for full payment to us of all amounts due from the buyer, we retain, and the buyer grants to us, a security interest in the property purchased by the buyer at auction, and in any other property or money of the buyer in our possession or coming into our possession subsequently. We retain the rights of a secured party under the California Commercial Code. All fees, taxes, premiums or other sums due and not paid pursuant to this paragraph shall bear interest at 1.5 % per month from the 8th business day following the sale to the date paid in full.
If a buyer fails to make timely payment as required, we shall be entitled, in our discretion, to exercise any remedies legally available to us, including, but not limited to, the following:
-Cancellation of the sale of the property to the non-paying buyer, including the sale of any other property to the same buyer
-Reselling the property, at public or private sale, with or without reserve
-Retention of any amounts already paid by the buyer as liquidated damages
-Rejection of any bids by the buyer at future auctions
-Offset against any amounts owed by us to the buyer in satisfaction of unpaid amounts
-Taking any other action we deem necessary or appropriate under the circumstances
5. Collection of Purchases
All property not collected within thirty (30) calendar days following the sale date will become subject to storage and handling fees of $10 per day per lot, and property may be moved to alternate storage facilities at the buyer's risk and expense. Items that are paid for and left over 45 days will be considered abandoned to the auctioneer. By signing up for this auction you agree that you will forfeit any purchases left longer than 45 days after the auction.
6. Packing and Shipping
Shipping is the responsibility of the purchaser. Upon request, our staff will provide a list of shippers who deliver to destinations within the United States and overseas. Some property that is sold at auction can be subject to laws governing export from the U.S., such as items that include material from some endangered species. Import restrictions from foreign countries are subject to these same governing laws. Granting of licensing for import or export of goods from local authorities is the sole responsibility of the buyer. Denial or delay of licensing will not constitute cancellation or delay in payment for the total purchase price of these lots.
We may, as a courtesy to the buyer, provide or arrange packing, shipping or similar logistical services, or refer the buyer to third parties who specialize in these services. All items must be declared, invoiced and insured for exact purchase amounts. Property will not be released to the shipper without the buyer's written consent and until payment has been made in full. Any such services provided or arranged by us are at the buyer's sole risk and expense, and we assume no responsibility for any act or omission of any party in connection with any such service or reference.
7. Liability for delivery of property and risk of loss.
The Modern Art Exchange assumes no liabilities for lost, stolen, mis-delivered, missing parts, partial or frame or glass damage or misplaced items or any actions or inactions of any shippers, movers or other post-sale subcontractors, bidders, saleroom and/or warehouse staff or any losses or damage during presale, auction or post-sale by The Modern Art Exchange staff, bidders, patrons or subcontractors whether or not retained by the buyer.
In the event a delivery cannot be made because of loss due to fire, theft, or any other reason, The Modern Art Exchange shall not be liable for any amount in excess of that paid by the purchaser.
8. Rights to Photographs and Copyright
All images and text contained in this catalogue are the sole property of The Modern Art Exchange, and may not be used or reproduced in any medium without the expressed written permission of The Modern Art Exchange.
The Modern Art Exchange and its consignor(s) make no warranty or representation, express or implied, that the purchaser will acquire any copyright or reproduction rights to any lot sold. The Modern Art Exchange expressly reserves the right to reproduce any image of the lots sold in this catalogue.
9. Severability
If any provision of these Terms and Conditions of Sale is held by any court to be invalid, illegal or unenforceable, such provision shall be disregarded and the remaining Terms and Conditions of Sale enforced in accordance with the original document and in accordance with applicable law.
10. Governing Law, Venue and Jurisdiction
The rights and obligations of the parties with respect to the Terms and Conditions of Sale and the conduct of the auction shall be governed and interpreted by the laws of the State of California. By bidding at an auction, the buyer shall be deemed to have consented to the exclusive jurisdiction of the courts of such state and the federal courts sitting in such state. Further, the buyer agrees that the venue for any action arising out of the failure to abide by the Terms and Conditions of Sale, or any conduct related to or arising out of the auction, shall be in Alameda County, California, USA.
The buyer expressly agrees that (i) neither The Modern Art Exchange nor the seller shall be liable, in whole or in part, for any special, indirect or consequential damages, including, without limitation, loss of profits and (ii) the buyer's damages, if any, are limited exclusively to the original purchase price paid for the lot.
11. Discretion
Any and all of the terms and conditions may be waived or modified in the sole discretion of The Modern Art Exchange.
12. All Sales Final
Notwithstanding any other terms of these conditions, any and all refunds shall be given at the sole discretion of The Modern Art Exchange. Refunds requested on the grounds of authenticity must be made in writing within 10 days of the auction date, and the item in question must be returned to the gallery within 5 days of such written notice. Such requests must be accompanied by at least one supporting statement in writing from a recognized authority. A recognized authority shall be defined as a person who has authored, edited, or substantially contributed to a monograph on the artist, a person who has curated, organized or substantially contributed to a solo exhibition on the artist, a person who has represented the artists estate or someone who represented or worked closely with the artist while they were alive and, in any of the above instances physically handled works of the period, medium and subject matter in question during the course of their duties. Please note that dealers who advertise to buy a wide range of artists, appraisers and representatives of other auction firms do not qualify as authenticators of individual artists unless they have had such specific involvement with an artists work as specified above in addition to their daily duties. The Gallery reserves the right to ascertain whether or not the authority used by the buyer is a recognized authority on the artist or maker. Any lot in question must be returned to The Modern Art Exchange in the exact same condition as when sold. Please be advised that The Modern Art Exchange does not grant extensions to refund considerations based upon authenticity due to shipping delays. There are no exceptions to this refund policy.
13. Limited Warranty
The warranty shall not apply to any lot for which the attribution conforms with the generally accepted opinion of scholars, specialists or other experts on the date of sale, despite the subsequent discovery of information that modifies such generally accepted opinions.
The buyer's sole remedy, and The Modern Art Exchange's sole liability, under the warranty shall be the cancellation of the sale of the property in question, and the refund of the purchase price originally paid by the buyer in respect of the property (not including any late fees, shipping or storage charges incurred by the buyer).
In no event shall The Modern Art Exchange be liable to the buyer or any third party for any special or consequential damages including, without limitation, lost profits or interest.
The buyer must provide written notice of any claim under the warranty to The Modern Art Exchange not later than 10 calendar days from the date of sale, and must return the property within 5 calendar days of such written notice to The Modern Art Exchange in the same condition as at the time of the original sale. The Modern Art Exchange reserves the right to appoint two independent specialists to examine the property and evaluate the buyer's claim before determining whether to cancel the sale in question.
Revised April 18, 2019
