Terms & Conditions
The Terms and Conditions set forth below apply to the auction and sale of artwork by Baterbys, LLC, (hereinafter "Baterbys"), a Florida limited liability company, acting as an agent for a seller of such artwork. By bidding at an auction, whether in person, by agent, by written bid, by telephone bid, by online bid, or by any other means, the Buyer agrees to be bound by these Terms and Conditions. Except as otherwise stated, Baterbys acts as an agent for the seller and as such the contract for sale of artwork is between the seller and the buyer.
These Terms and Conditions apply to an auction and sale of artwork whether by "live auction" or "Internet auction," unless a Term and Condition specifically refers to a "live auction" or "Internet auction". "Live auction" means an auction that takes place at a designated location and time where Bidders bid on artwork being auctioned by an auctioneer and the auctioneer accepts the highest bid on artwork. "Internet auction" means an auction that takes place on an Internet website where Bidders entered bids on the website and the highest bid at the end of a time period declared by the auctioneer is accepted.
The terms "Buyer" and "Bidder" in these Terms and Conditions are interchangeable and refer to the same.
Warranty of Artwork and Information Regarding Artwork
1. All artwork to be auctioned at any live auction conducted by Baterbys, may be viewed and examined prior to a live auction by interested Buyers at a time and place to be determined by Baterbys.
2. Any representation or statement by a representative of Baterbys, the auctioneer, or their agents or successors, oral or written , or in any catalogue, brochure, advertisement, or on any Internet site, regarding forthcoming sales as to authorship, attribution, genuineness, origin, date, age, provenance, condition or estimated selling price is a statement of opinion only. Interested Buyers are advised to exercise caution and rely on their own research and judgment as to such matters. Baterbys, the auctioneer, and their agents or successors are not responsible for the accuracy of such opinions. Except as stated in Paragraph 6, there are no warranties provided by Baterbys, the auctioneer, their agents or successors, and all such expressed or implied warranties are hereby void.
3. All information contained in any catalogue, brochure, advertisement, or on any Internet site regarding forthcoming sales as to authorship, attribution, genuineness, origin, date, age, provenance, condition, or estimated selling price is based on knowledge published until the date of the auction. Baterbys reserves the right to correct such information on the artwork to be auctioned. Said correction is made by written notice at the location of a live auction and orally by the auctioneer at a live auction immediately before the specific artwork is auctioned; or said correction is made by written notice posted prior to the auctioning of the specific artwork on the Internet site where such artwork is to be auctioned by an Internet auction. Said corrected information will replace the information in all other mediums.
4. Except as stated in Paragraph 6, Buyer agrees to buy artwork under these Terms and Conditions regardless of information in and catalogue, brochure, advertisement, or on any Internet site regarding authorship, attribution, genuineness, origin, date, age, provenance, condition, or estimated selling price as part of the condition of sale.
5. Except as stated in Paragraph 6 all artwork is sold "as is" without any representation of warranty of any kind by Baterbys or the seller.
6. Baterbys offers a lifetime warranty on artwork owned by Baterbys or its affiliates, agents, or successors that is offered at auction ONLY as to the artwork's artist, title, medium, and signature. Buyer must present the opinions of two (2) reputable, certified appraisers recognized and accepted by Baterbys and the art industry that Baterbys' description as to artwork's artist, title, medium or signature is in error. Baterbys' warranty is limited to the purchase price paid by the Buyer. Baterbys does not warrant the year, edition, condition, or any other description of such artwork.
7. Buyer agrees, to the fullest extent permitted by law, to indemnify and hold harmless Baterbys, its officers, directors, employees and agents from and against any liabilities, damages, and costs (including reasonable attorneys fees and costs of defense) arising out of any negligent acts, errors, or omissions of Baterbys or anyone for whom Baterbys is legally responsible.
8. Except as stated in Paragraph 6 and notwithstanding the above provisions, if a Buyer should prove that any information in a catalogue, brochure, advertisement, or on any Internet site regarding authorship, attribution, genuineness, origin, date, age, provenance, condition is an intentional misrepresentation of fact, misleading, or deceptive, and if a Buyer should prove that Buyer relied on such information prior to bidding on artwork, then Buyer may rescind the agreement to purchase the artwork, and demand repayment of the purchase price already paid by Buyer as long as there are no third party claims to the artwork and as long as the artwork is returned to Baterbys in an unaltered condition. Buyer has no right to reduce the purchase price as an alternative without written consent of Baterbys. Buyer agrees to limit damages for all legal claims against Baterbys to the purchase price already paid by the Buyer. In such a claim, Buyer agrees to pay all of Buyer's attorney's fees and legal and related expenses.
Auction Bids
9. All price estimates stated in any catalogue, brochure, advertisement, or on any Internet site are not minimum or maximum prices but are stated to indicate the estimated market value of the artwork. No warranty is given as to the accuracy of the estimated market value.
10. Baterbys reserves the right to combine artwork in listed or pictured in any catalogue, brochure, advertisement, or on any Internet site and offer such combined artwork as group lots. Baterbys reserves the right to combine, separate, offer out of sequence or withdraw numbered lots during an auction.
11. All bids submitted by a Bidder at an auction, are accepted as bids of that Bidder and such Bidder is responsible for such bid under these Terms and Conditions. To bid on behalf of a third party, a Bidder must submit a written, signed, witnessed, and notarized power of attorney authorizing the Bidder to bid on behalf of a third party to Baterbys no later than 24-hours prior to the start of an auction.
12. Prospective Bidders must apply in writing a minimum of 24 hours prior to a live auction to obtain a Bidder's number. Baterbys reserves the right to request references and photo identification prior to admitting a Bidder to a live auction. Only bids using the assigned Bidder's number will be accepted at a live auction.
13. Prospective Bidder must apply online a minimum of 24 hours prior to an Internet auction to obtain a user name and password. Baterbys reserves the right to request references and photo identification prior to admitting a Bidder to participate in an Internet auction. Only Bidders using assigned user names and passwords will be permitted to bid in Internet auctions.
14. Subject to Baterbys pre-approval, absentee bids for live auctions may be submitted in writing, by telephone, or by Internet. Bidders must apply to bid absentee a minimum of 24 hours prior to a live auction. Pre-submitted absentee bids must specify the artwork, list lot number, and catalogue name. In the event of inconsistent information on an absentee bid, the lot number shall be decisive. Baterbys is not responsible for inaccurate information on an absentee bid, failing bids, or error relating to the execution of bids. Absentee bids for live auctions shall be equivalent to bids made during the auction and shall be executed as follows:
a. Written bids must include Bidder's signature and the hammer price that is bid for the artwork (excluding premiums and other charges). By submitting a written bid, the Bidder authorizes the auctioneer to submit bids on his or her behalf. Written bids are considered as bids already submitted during the auction. In the event several written bids of the same amount for the same artwork are received, then the first bid received shall be accepted if no higher bid is received. Each written bid shall be used by Baterbys only in the amount necessary to out-bid another bid that has been made.
b. Telephone bids are accepted via a person present at a live auction on the telephone with the Bidder. The person present at a live auction must provide Baterbys with written authorization stating that such person is authorized to bid on behalf of the Bidder. A Bidder submitting bids by telephone agrees to the recording of such telephone bids. Baterbys is not responsible for the set up and maintenance of telephone connections or for errors committed by the person present at the auction submitting bids on behalf of the Bidder.
c. Internet bids during live auctions may be submitted as "pre-bids" prior to the beginning of an auction, as "live bids" during an auction, or as post bids after conclusion of the auction. Live bids must be received via the Baterbys website used to receive Internet bids at auctions. The website address will be posted in an auction catalogue, brochure, advertisement, or on any Internet site. Internet bids for live auctions are admissible upon Baterbys authorization and issuance of a user name and password. Bids by Internet become electronic records. Internet bids must specify the hammer price that is bid for the artwork (excluding premiums and other charges). In the event several Internet bids of the same amount for the same artwork are received, then the first bid received shall be accepted if no higher bid is received. Each Internet bid shall be used by Baterbys only in the amount necessary to out-bid another bid that has been made.
15. If a lot is offered subject to a reserve, the auctioneer may open the bidding below the reserve by placing a bid on behalf of the seller. The auctioneer may continue to bid on behalf of the seller up to the amount of the reserve, either by placing consecutive bids or by placing bids in response to other bidders.
16. Buyers who bid and purchase artwork at a live auction are subject to these Terms and Conditions.
17. Buyers who bid in Internet auctions agree to abide by these Terms and Conditions and the terms of the User Agreement posted on the Internet site where Internet auctions will occur.
Acceptance of Bids
18. Bids submitted by Bidders at auctions are considered offers to purchase a specific artwork. Successful bids are considered acceptance by Baterbys to sell the artwork at the bid price, plus additional premiums and expenses. A bid on an artwork item at a live auction is accepted after the auctioneer has called the highest Bidder's bid and declared the end to the auction of such artwork item. A bid at an Internet auction is accepted when the bid is the highest bid at the end of a time period declared by the auctioneer.
19. When a bid is accepted, a purchase agreement is created between Baterbys and the Bidder, whose bid was accepted, obligating both parties to perform in accordance with these Terms and Conditions.
20. Baterbys reserves the right to refuse to accept a bid or accept a bid subject to reservation in the event the Bidder has not qualified or provided requested banking or other references, or has provided such references but Baterbys could not verify such references before the start of an auction. If Baterbys refuses to accept such bid, the previous highest bid remains valid. Acceptance of a bid subject to a reserve becomes valid if Baterbys confirms acceptance of the bid in writing to the Bidder within one month after the date of the auction. Such writing may be in the form of an invoice.
21. Acceptance of a bid immediately passes the risk of damage or loss from Baterbys to the Bidder.
22. Acceptance of a bid immediately imposes an obligation on the Buyer to pay in full all sums owed by the Buyer and to collect the artwork. Buyers who are present at a live auction must pay all sums owed by the Buyer and collect the artwork immediately after conclusion of such live auction. Buyers not present at a live auction must pay in full all sums owed by the Buyer and collect the artwork immediately after Baterbys advises them of their successful bid. Baterbys will arrange for insurance and shipment of artwork at Buyer's costs and risk upon Buyer's written instruction to Baterbys.
23. In the event a Buyer does not collect artwork immediately after the conclusion of the auction and in the event no other arrangements for shipment have been made between Buyer and Baterbys, then Baterbys is entitled to keep the artwork in warehouse storage at the cost and risk to the Buyer. Storage of Buyer's artwork does not waive Baterbys right to demand performance under the purchase agreement and these Terms and Conditions or to assert a claim for breach of contract. Under no circumstance shall Baterbys be liable for loss of or damage to artwork that has not been collected by Buyer, or not released to Buyer due to non-payment.
Payment
Payment
24. The Buyer agrees to pay the purchase price (the successful bid price) in full upon acceptance of the Buyer's bid. In addition, the Buyer agrees to pay any and all premiums, applicable value added tax, sales tax or equivalent tax in the place of sale, export tax, and expenses in full upon acceptance of the Buyer's bid.
25. Payment of the total amount due upon acceptance of a bid must be paid in cash, check, cashiers check, bank wire, or credit card. Identification will be necessary when making payment. Payment by check is considered performance under these Terms and Conditions only once such checks have been cleared through the bank and funds are deposited in Baterbys account.
26. Buyer agrees to pay for all additional costs and expenses associated with payment method, transfer fees, delivery of artwork, insurance, taxes, and any other foreseen and unforeseen expenses associated with the purchase, protection, and delivery of purchased artwork.
27. Buyer agrees to pay for all duties and taxes associated with the purchase and delivery of artwork.
28. Buyer agrees to pay a six point five percent (6.5%) Florida sales tax for all artwork taken or delivered to a Florida address.
29. Buyer with tax exempt status shall provide verification and tax identification number at the time of initial application and upon the payment of purchase price.
30. A Buyer wishing to apply for an export license is still subject to the payment terms, storage charges, and other expenses of these Terms and Conditions.
31. All payment must be in U.S. dollars.
32. Default in payment occurs immediately upon non-payment of all sums due under the purchase contract immediately following an auction. In the event of default in payment, Buyer shall pay an additional one percent (1%) of the bid price per month for every month of default. In addition, Baterbys may demand performance of the purchase agreement or may rescind the agreement after setting a suitable time for performance by Buyer. In the event of rescission, all of Buyer's rights to the purchased artwork shall lapse and Baterbys shall be entitled to demand damages amounting to the lost fee for the artwork, including but not limited to the consignor commission and premiums. If the artwork is re-auctioned at a new auction, then the defaulting Buyer is additionally liable for any shortfall in proceeds compared with the earlier auction and for the costs of the repeat auction. Buyer is not entitled to any excess proceeds from the re-auctioning of the artwork. Baterbys has the right to exclude such defaulting Buyer from further bids in auctions. Notwithstanding the above, Baterbys shall retain all rights to initiate any and all legal remedies available under the law to demand specific performance under the purchase agreement and these Terms and Conditions and for damages due to breach of contract.
Title
33. Title to the artwork passes to the Buyer only upon receipt of all payment owed by Buyer under the purchase agreement and these Terms and Conditions. Buyer agrees that the Buyer is not vested with title or any rights to sell the artwork Buyer purchased until Baterbys is paid in full including the bid price, premiums, and all additional costs and expenses associated with payment method, transfer fees, delivery of artwork, insurance, taxes, and any other foreseen and unforeseen expenses associated with the purchase, protection, and delivery of the artwork.
