Auction Terms & Conditions
PROPOSED TERMS AND CONDITIONS OF SALE
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 No sale shall be rescinded for failure of the Lot to conform to the description or statement of AHW or to the image of the Lot as provided by AHW.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.
Sebae Data Solutions, Inc.
SERVICE TERMS AND CONDITIONS
ACCEPTANCE OF TERMS
Sebae Data Solutions, (the makers of Auction Flex & HiBid (formerly Bidopia) hereafter referred to as "Sebae"), provides its service to you, subject to the following Terms & Conditions ("TAC"), which we may update from time to time without notice to you. The most current version of the TAC can be found found at any time by visiting the link: http://www.auctionflex.com/showtandc.ap
USE AND REGISTRATION
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended members. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our service. If you are registering as a business entity, you represent that you have the authority to bind the entity to the TAC.
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Bidder Information") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sebae has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sebae has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
DESCRIPTIONS OF SERVICE
Sebae provides the following services under the Auction Flex & HiBid trademarks: Integrated Web Service (for auctioneers), internet bidding (absentee, online-only, & webcast). You can learn more about these services in the following sections.
HIBID INTERNET AUCTION PLATFORM & WEB SERVICE DESCRIPTION
Sebae provides the HiBid (formerly Bidopia) Internet Auction Platform & Web Service ("HWS") under the HiBid trademark as a software solution for auctioneers wishing to extend the audience of their live auctions to the internet. The HWS provides various features including internet absentee bidding, internet-only auctions, and webcast auctions.
The HWS is able to changes its appearance to coincide with the website that it is powering. Accordingly, the HWS powers the www.hibid.com website as well as numerous Auction Flex customer websites. This ability to change appearance is a feature of the HWS. Much like internet merchant account providers can host a secure web page for a vendor to easily process payments, the HWS hosts certain portions of the auctioneer's website to easily enable advanced features such as internet bidding.
INTERNET ABSENTEE BIDDING
Internet absentee bidding allows you to place a bid for an item in advance of an auction. This allows you to place bids on lots without actually attending the auction.
Internet only bidding allows you to place a bid for an item prior to the auction lot closing online. In an internet-only auction there is no live auction.
Webcast auctions allow you to bid in real-time against other bidders or place pre-bids prior to a lot going "live".
Lots are sold in accordance with the Auctioneer's terms and conditions which are accessible from each lot's page. It is your responsibility to read and accept the Auctioneer's terms and conditions prior to placing your bid.
When you place a bid you are agreeing to be bound by the Auctioneer's & Sebae's terms and conditions. By placing a bid you are entering into a legally binding and enforceable contract. Please keep in mind that you are bidding against other internet bidders as well as floor bidders, phone bidders, and regular absentee bidders (this list does not constitute a complete list of bidder types but does highlight the common bidder channels).
The auctioneer, at their discretion, can approve or deny bidders. The auctioneer reserves the right to accept or deny bidders for any reason. Prior to approval the auctioneer may contact you to determine your credit worthiness. If the auctioneer approves your bid, the auctioneer will then process your bid in accordance with their terms and conditions.
Should your bid for a lot prove successful, the auctioneer may contact you to arrange for payment & shipping (if applicable). If the auctioneer required registration via a credit card, the auctioneer reserves the right to process your winning bids to the credit card provided during registration.
Sebae, through the Auction Flex & HiBid products & services, facilitates the internet bidding process between the Auctioneer & the bidder. Sebae is in no way a party to the transaction. Because Sebae is not a party to the transaction, you accept that you will have no claim or cause of action against Sebae in respect of the sale (or non-sale) of any Lot. If you have a dispute with an Auctioneer or another user of the Service with regard to the sale (or non-sale) of any Lot you agree that Sebae, its officers, agents, employees will not be liable for losses (including, but not limited to, loss of profits, special loss, indirect loss and consequential los), costs, damages, liabilities, claims, demands and expenses of any kind arising out of or connected with such dispute. You also accept that none of the aforementioned are under any obligation to take any action to resolve any dispute between you and an Auctioneer
Sebae is not responsible for any typographical, pictorial or technical errors in information about Lots on the Site as provided by Auctioneers. Sebae does not evaluate Lots and does not act as a specialist or expert on any related subject matter. Sebae makes no warranties or representation of any kind or nature with respect to Lots (including but not limited to representations or warranties as to the accuracy of description, genuineness, quality, authorship, attribution, provenance, period, culture, source, origin or safety). If you have any questions, e-mail the Auctioneer directly. In particular, make sure that you understand the Auctioneer's payment terms and shipping terms.
The Service requires you to login with your username and password prior to placing a bid on a Lot. Making bids with false information or with stolen credit card information is prohibited and illegal.
Your user name and password are required in order to place internet bids. Making bids in a false name or with an invalid or stolen credit card is prohibited. Each bid carries the computer coding of the Internet provider which allows the individual user to be traced and Sebae may at its discretion release this information to enable legal action to be taken. Sebae may, in its entire discretion, refuse or remove bids where it suspects that bids contravene this prohibition. By placing a bid, you are making a binding and irrevocable offer to purchase the Item at any price up to the maximum bid amount you submit. If you win, you must complete the transaction, subject to any contractual right or other right at law to rescind the contract in certain circumstances. Failure to complete transaction without lawful reason is not only a breach of your contract with the Seller but also a breach of this User Agreement.
The amount bid can be increased but cannot be decreased. The auctioneer may, at their discretion, allow you to withdraw and resubmit a bid in the case of bids containing an obvious typographical error. You may forward a request to withdraw a bid and resubmit a correct bid by immediately sending an email to the auctioneer, however, there is no guarantee that any bid will be withdrawn. Although Sebae will use best efforts to forward all bids, Sebae does not accept any responsibility for lost bids or problems with the recipient auctioneer's ability to process your bid. Moreover, Sebae cannot guarantee that bids received will be processed by the individual auctioneers.
Please note that Sebae's role is limited to the provision of the Site for dissemination and publication of information provided by the Sellers.
THE WINNING BID
The winning bid in an auction will be the highest bid that exceeds any reserve (if a reserve exists). In the case of equal bids, the earliest bid received will be the winning bid. If a higher bid is subsequently withdrawn or removed then the auctioneer shall have the right to accept the next highest bid.
NOTICE OF END OF SALE, PAYMENT & SHIPPING
After the sale has ended, the auctioneer will notify the winning bidder via phone, fax or mail that they have won. If you do not receive notice that you have made the winning bid and think that you are the top bidder, you should check with the auctioneer directly. You will make all payment for Items to the auctioneer in accordance with their terms and conditions.
BUYER'S PREMIUM, TAXES AND DUTIES
If you are a successful bidder, you are responsible for paying any buyer's premium, taxes and duties (including any VAT, sales tax and import duties) that may be imposed on the final price paid for an Item. Accordingly, it is your responsibility to check the applicable taxes and duties that may be imposed on an Item prior to bidding for it.
All material and content as provided by the Service is protected by copyright and similar rights. You can not use or make available any of that material for any commercial purpose.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
a. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. Sebae expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
b. Sebae makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the software will be corrected.
c. Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
d. no advice or information, whether oral or written, obtained by you from Sebae or through or from the service shall create any warranty not expressly state in the TAC.
LIMITATION OF LIABILITY
You expressly understand and agree that Sebae shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Sebae has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the service.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of of the previous two sections titled 'Disclaimer of Warranties' and 'Limitation of Liability' may not apply to you.
You agree to indemnify and hold Sebae harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
The TAC constitute the entire agreement between you and Sebae and govern your use of the Service, superseding any prior agreements between you and Sebae. The TAC and the relationship between you and Sebae shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and Sebae agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Marion, Florida. The failure of Sebae to exercise or enforce any right or provision of the TAC shall not constitute a waiver of such right or provision. If any provision of the TAC is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TAC remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TAC must be filed within one (1) year after such claim or cause of action arose or be forever barred.