Terms and Conditions of Sale
The terms and conditions of sale provided herein shall govern any proposed or actual contract for the sale of property between a buyer or prospective buyer and A.H. Wilkens Auctions & Appraisals Inc. (?AHW?) as agent for the person who has consigned the property to AHW for sale (the ?Consignor?). The property shall be offered and sold in groupings or partitions as determined by AHW (the ?Lot?).
1. A prospective buyer making a successful bid on the Lot (the ?Buyer?) acknowledges that AHW acts exclusively as the agent for the Consignor. AHW has relied solely upon the representation of the Consignor as to legal title to, the right to possession of, and the absence of charges or encumbrances against the Lot (?Good Title?) and makes no representation and offers no warranty of Good Title to the Buyer. No representation is made to the Buyer that the Buyer of a Lot will acquire any copyright or other reproduction right in the Lot.
2. Any statements about or descriptions of the Lot by AHW are purely statements of opinion and are not intended to constitute a representation to any Buyer or prospective buyer and no warranty of the correctness of such description is made. All photographic reproductions of the Lot provided by AHW are solely for reference and may not disclose imperfections in the Lot. All lots are sold ?as is? and ?where is? and without recourse. An opportunity for inspection of each Lot is offered by AHW prior to the time of sale. It is the responsibility of the Buyer or prospective buyer to inspect or have inspected each Lot upon which he wishes to bid, and to rely upon this inspection or upon the guidance of his own advisers in making any bid for the Lot. No sale shall be rescinded for failure of the Lot to conform to the description or statement of AHW or to the image of the Lot as provided by AHW.
3. If the Buyer or prospective buyer is unable to personally view any Lot, AHW may, upon request, e-mail or verbally provide a condition report describing the Lot to the Buyer or prospective buyer. A condition report is only a matter of opinion and is non-exhaustive and AHW shall not be liable for any error or omission contained therein. A condition report does not alter the responsibility of the Buyer or prospective buyer to satisfy himself as to the condition of the Lot as provided under Section 2 herein. AHW shall not update or provide a condition report on any Lot after the sale of the Lot.
4. Notwithstanding Section 2, if a Lot has been represented by AHW as genuine or authentic and if, within fourteen (14) days of the sale of the Lot, the Buyer gives written notice to AHW that the Lot is not genuine or authentic, returns the Lot to AHW in the same condition as at the time of sale, provides (at the cost of the Buyer) a written opinion of two qualified persons acceptable to AHW that the Lot is not genuine or authentic, and provides a written request for rescission of the sale of the Lot, then the sale of the Lot shall be rescinded and the Purchase Price paid by the Buyer for the Lot shall be returned to him.
5. The price to be paid by the Buyer to AHW for the Lot (the ?Purchase Price?) shall be the total of: (a) the amount of the bid of the Buyer for the Lot that was accepted by AHW (the ?Bid Price?); (b) a premium of 20% of the Bid Price (the ?Buyer?s Premium?); (c) applicable sales tax as provided in Section 6; and (d) any other cost, charges, or expenses as provided herein. The Buyer?s Premium on the Lot shall be reduced to 17% of the Bid Price if payment for the Lot is made to AHW in cash, by certified cheque, money order, debit, or wire transfer, provided that payment of the Purchase Price is made by the Buyer within seven (7) days of the date of the sale in accordance with the provisions of Section 11 herein. The Buyer?s Premium shall be increased to 25% of the Bid Price if the Buyer has bid for the Lot online. All amounts payable herein shall be paid in Canadian dollars and any risk or cost of currency exchange or conversion shall be the responsibility of the Buyer.
6. The Buyer is required to pay all federal and provincial sales and other taxes applicable (?HST?) on the Purchase Price for the sale of the Lot. All or part of the HST may be exempt on the sale if the Lot is shipped outside of Canada. It is the Buyer?s obligation to advise AHW of the intention to claim an exemption or partial exemption of HST, to demonstrate its entitlement to the exemption or partial exemption of HST to the satisfaction of AHW, and to provide documentation as required by AHW prior to payment of the Purchase Price and delivery of the Lot. Where the Buyer has claimed an exemption or partial exemption of HST the Buyer shall fully indemnify AHW for any amount claimed by any taxing authority for HST due upon the sale of the Lot, including costs, interest, and penalties.
7. Every Buyer or prospective buyer must register with AHW prior to the auction and be accepted by AHW as a bidder. If the Buyer or prospective buyer intends to bid online at the auction, the Buyer or prospective buyer shall register with Liveauctioneers (or such other auction service as may be designated by AHW from time to time) prior to the auction and be accepted by AHW as a bidder. Absentee Buyers or prospective buyers unable to participate directly in the auction must register with AHW prior to the auction, provide AHW with bidding instructions acceptable to AHW and be accepted by AHW as an absentee bidder. AHW may require evidence of identity or other information deemed necessary by AHW to confirm the bona fides and financial status of the Buyer or proposed buyer before accepting any Buyer or prospective buyer as a bidder, an online bidder or an absentee bidder for an auction (a ?Bidder?). The registration by the Buyer or prospective buyer as a Bidder shall constitute the Buyer or prospective buyer?s consent to be bound by the terms and conditions of sale as provided herein.
8. The Buyer or prospective buyer represents and warrants to AHW that all contact details and other information provided in the registration process are complete and accurate and, except as otherwise expressly accepted by AHW, that the Buyer or prospective buyer is bidding at the auction on his own behalf. AHW reserves the right to refuse to accept the Buyer or prospective buyer as a Bidder for any reason and to request a deposit of up to $10,000.00 (in form acceptable to AHW) to be provided by the Buyer or prospective buyer before acceptance as a Bidder (the ?Deposit?). AHW may apply the Deposit paid by a Buyer to the payment of the Purchase Price for a Lot sold to the Buyer.
9. AHW retains the right, in its sole discretion, to:
(a) withdraw a Lot from sale, to divide any Lot or to combine any two or more Lots at any time and without notice to any Bidder;
(b) regulate and control the bidding of a Lot and to advance the bids for the Lot in whatever intervals it considers appropriate for the Lot or to halt bidding on the Lot, including without limitation the right to refuse any bid;
(c) agree with the Consignor to an unpublished minimum price for any Lot (the ?Reserve?), to alter the Reserve at any time upon agreement with the Consignor, and to refuse any bid that does not meet the Reserve;
(d) accept absentee or telephone bids for a Lot, and to bid on the auction of a Lot on behalf of the Consignor or any absentee Bidder;
(e) to conclude the sale of a Lot and identify the highest Bidder as the Buyer of the Lot;
(f) in the case of any dispute or error related to bidding on the Lot, whether during or after the auction, continue the bidding, determine the successful Bidder of the Lot (the Buyer), cancel the sale of the Lot, or reoffer and resell the Lot in the same or subsequent auction or private sale. The determination of AHW in the exercise of discretion herein shall be final.
10. Every Bidder acknowledges that once a bid has been made by the Bidder or by AHW on behalf of an absentee Bidder, the bid may not be withdrawn without the consent of AHW, and that such consent may be withheld by AHW in its sole discretion. Once the Bidder has been identified by AHW as the Buyer of a Lot, the Buyer shall pay the Purchase Price for the Lot to AHW.
11. The Buyer shall make payment of the Purchase Price for the Lot to AHW within seven (7) days of the date of sale of the Lot. Payment of the Purchase Price shall be made as follows:
(a) by wire transfer or bank draft. Any fee cost or expense payable by AHW in respect of its receipt of a wire transfer or bank draft shall be paid by the Buyer to AHW as part of the Purchase Price;
(b) for amounts up to $10,000, by cash;
(c) by VISA, Mastercard, AMEX, or Union Pay where the Buyer makes payment in person or up to $5,000 where Buyer makes payment without being present, provided that Buyer has provided the information required by AHW for the effective processing of the payment. AHW may accept a credit card payment in other circumstances in its sole discretion and may in all cases require evidence of identity or of authenticity of the credit card as it deems necessary;
(d) by INTERAC or direct debit where the Buyer is a resident of Canada and makes payment in person;
(e) by certified cheque or by electronic payment where the Buyer is a resident of Canada provided that such amount shall not be effectively paid for the purposes of these terms and conditions until the receipt of payment has been confirmed by the financial institution used by AHW. AHW may accept a certified cheque or electronic payment in other circumstances in its sole discretion and may require evidence of identity or acceptability of the transfer by the financial institution used by AHW as it deems necessary. Any fee, cost or expense payable by AHW in respect of its receipt of a certified cheque or electronic payment shall be paid by the Buyer to AHW as part of the Purchase Price.
AHW may process any Deposit made by the Buyer as partial payment for the Purchase Price of the Lot at any time after the sale of the Lot but prior to full payment of the Purchase Price. Any amount of the Purchase Price that has not been paid by the Buyer within ten days of the date of sale of the Lot shall accrue interest at a rate of 2% per month.
12. Title to the Lot to the Buyer shall pass and release of the Lot to the Buyer or his agent shall occur only upon payment to AHW by the Buyer of the Purchase Price. The risk of loss or damage to the Lot shall pass to the Buyer at the time of sale at the auction of the Lot and the Lot shall be held by AHW at its premises or at a third-party storage area at the sole risk of the Buyer until release of the Lot to the Buyer or rescission of the sale of the Lot.
13. The Buyer shall collect the Lot and remove it from the premises of AHW within seven (7) days of the date of sale of the Lot. The Buyer shall provide AHW with any authorization deemed necessary by AHW to release the Lot to a person claiming to be acting as an agent of the Buyer. It is the sole responsibility of the Buyer to make arrangements for the insuring, packing, and removal of the Lot and any assistance by AHW, its agents or contractors, in packing or removal shall be rendered by them as a courtesy and without any liability to AHW for loss or damage to the Lot.
14. If the Buyer fails to either pay the Purchase Price for the Lot or to remove the Lot from the premises of AHW after the expiration of seven (7) days of the date of the sale of the Lot, AHW may, in its sole discretion and without limiting any other rights AHW or the Consignor may have by law:
(a) rescind the sale of the Lot and determine whether or not to resell the Lot or cause it to be resold, either by auction or by private sale, with any deficiency to be claimed from the Buyer;
(b) store the Lot at the sole risk and expense of the Buyer at the premises of AHW or at a third-party storage area; and
(c) apply any amount owing by AHW to the Buyer for any reason to the outstanding amount owed by the Buyer to AHW for the Lot and retain and exercise a lien over any other lot sold to or consigned by the Buyer at the same or any other auction as security until full payment for the Lot has been made by the Buyer.
15. The Buyer understands and acknowledges that the purchase or delivery of any Lot may be affected by the provisions of the Cultural Property Export and Import Act (Canada) and by the restrictions existing on the import and export of species protected under the Convention on International Trade in Endangered Species. Compliance with these provisions is the sole responsibility of the Buyer and, without limitation, AHW makes no warranty as to the ability of the Buyer to export the Lot outside of Canada.
16. These terms and conditions shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.
Payment
10. Every Bidder acknowledges that once a bid has been made by the Bidder or by AHW on behalf of an absentee Bidder, the bid may not be withdrawn without the consent of AHW, and that such consent may be withheld by AHW in its sole discretion. Once the Bidder has been identified by AHW as the Buyer of a Lot, the Buyer shall pay the Purchase Price for the Lot to AHW.
11. The Buyer shall make payment of the Purchase Price for the Lot to AHW within seven (7) days of the date of sale of the Lot. Payment of the Purchase Price shall be made as follows:
(a) by wire transfer or bank draft. Any fee cost or expense payable by AHW in respect of its receipt of a wire transfer or bank draft shall be paid by the Buyer to AHW as part of the Purchase Price;
(b) for amounts up to $10,000, by cash;
(c) by VISA, Mastercard, AMEX, or Union Pay where the Buyer makes payment in person or up to $5,000 where Buyer makes payment without being present, provided that Buyer has provided the information required by AHW for the effective processing of the payment. AHW may accept a credit card payment in other circumstances in its sole discretion and may in all cases require evidence of identity or of authenticity of the credit card as it deems necessary;
(d) by INTERAC or direct debit where the Buyer is a resident of Canada and makes payment in person;
(e) by certified cheque or by electronic payment where the Buyer is a resident of Canada provided that such amount shall not be effectively paid for the purposes of these terms and conditions until the receipt of payment has been confirmed by the financial institution used by AHW. AHW may accept a certified cheque or electronic payment in other circumstances in its sole discretion and may require evidence of identity or acceptability of the transfer by the financial institution used by AHW as it deems necessary. Any fee, cost or expense payable by AHW in respect of its receipt of a certified cheque or electronic payment shall be paid by the Buyer to AHW as part of the Purchase Price.
AHW may process any Deposit made by the Buyer as partial payment for the Purchase Price of the Lot at any time after the sale of the Lot but prior to full payment of the Purchase Price. Any amount of the Purchase Price that has not been paid by the Buyer within ten days of the date of sale of the Lot shall accrue interest at a rate of 2% per month.
