Conditions of Sale
The following Terms and Conditions of Sale, as amended by any posted notices or verbal announcements during the sale, constitute the entire terms and conditions on which property listed in the catalog shall be offered for sale or sold by Floating World Auctions and any consignor of such property for whom we act as agent. As used herein, "we" and "us" refer to Floating World Auctions.
1. As used herein, the term "bid price" means the price at which a lot is successfully knocked down to the purchaser. The term "purchase price" means the aggregate of (a) the bid price, (b) a PREMIUM retained by us and payable by the purchaser EQUAL TO 25% of the bid price and (c) unless the purchaser is exempt by law from the payment thereof, any Illinois state or local sales tax (or compensating use tax) and other applicable taxes.
2. On the fall of the auctioneer's hammer or for timed auctions at the expiration of the time for bidding, the highest bidder shall have purchased the offered lot in accordance with all of the conditions set forth herein and (a) assumes full risk and responsibility therefore, (b) if requested will sign a confirmation of purchase, and (c) will pay the purchase price in full or such part as we may require for all lots purchased. No lot may be transferred. Unless otherwise agreed, payment in good funds is due and payable within five (5) business days of the auction sale. Whenever the purchaser pays only a part of the total purchase price for one or more lots purchased, we may apply such payments, in our sole discretion, to the lot or lots we choose. Payment for purchases may be made in or by (a) cash, (b) cashier's check or money order, (c) personal check with approved credit, (d) wire transfer subject to a $25 fee, and agreement to make up any shortfall on funds received, or (e) credit card, which includes a surcharge. We do not accept PayPal. The purchaser grants us a security interest in the property, and we may retain as collateral security for the purchaser's obligations to us, any property and all monies held or received by us for the account of the purchaser, in our possession. We retain all rights of a secured party under the Illinois Uniform Commercial Code. If the foregoing conditions or any other applicable conditions herein are not complied with, in addition to other remedies available to us and the consignor by law, including without limitation, the right to hold the purchaser liable for the purchase price, we at our option may either (a) cancel the sale, retaining as liquidated damages all payments made by the purchaser or (b) resell the property, either publicly or privately, and in such event the purchaser shall be liable for the payment of any deficiency plus all costs and expenses of both sales, our commission at our standard rates, all other charges due hereunder, attorneys' fees and incidental damages. If all fees, commissions, premiums, bid price and other sums due to us from the purchaser are not paid promptly as provided in these Terms and Conditions of Sale, we reserve the right to impose a finance charge equal to 1.5% per month on all amounts due to us beginning on the 31st day following the sale until payment is received, in addition to other remedies available to us by law.
3. We reserve the right to withdraw any property at any time before the actual sale. Unless otherwise announced by the auctioneer at the time of sale, all bids are per lot as numbered in the catalog and no lot shall be divided for sale.
4. We reserve the right to reject a bid from any bidder. In the event of any dispute between bidders, or in the event the auctioneer doubts the validity of any bid, the auctioneer shall have sole and final discretion either to determine the successful bidder or to re-offer and resell the article in dispute. If any dispute arises after the sale, our sales records shall be conclusive in all respects.
5. Subject to these Terms and Conditions of Sale and to such terms and conditions as we may prescribe, but at no charge to the customer, we will undertake to execute all order bids submitted to us by a customer who has established credit with us. Telephone order bids must be confirmed in writing or by cable. All bids are kept in strict confidence. In the event of identical bids, the earliest will take precedence. We shall not be held responsible for errors or failure to execute bids. While the sale is in progress, bidding by telephone may be allowed by the auctioneer at his discretion. We shall not be held responsible for errors or failure to execute such a bid whether it be due to equipment failure, loss of connection, or failure to hear or understand the bidder's directions. All bidding by telephone is solely at the risk of the bidder.
6. Unless otherwise specified, all sales may have items subject to reserve (a confidential agreed upon price between the auctioneer and the consignor, below which the article will not be sold). The reserve will not be higher than the low estimate.
7. If we are prevented by fire, theft or any other reason whatsoever from delivering any property to the purchaser or a sale otherwise cannot be completed, our liability shall be limited to the sum actually paid therefore by the purchaser and shall in no event include any incidental or consequential damages.
8. Except as otherwise provided in Paragraph 14, all statements contained in the catalog or in any bill of sale, invoice or elsewhere as to authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, exhibition and literature of historical relevance, or physical condition ARE QUALIFIED STATEMENTS OF OPINION AND NOT REPRESENTATIONS OR WARRANTIES. No employee or agent of Floating World Auctions is authorized to make on our behalf or on that of the consignor any representation or warranty, oral or written, with respect to any property.
9. Shipping, insurance, packaging and handling of purchased lots is at the expense of the purchaser. As a service to the purchaser, we will ship appropriate items to purchasers located in the continental United States solely via UPS Ground or Three Day Select Service, to purchasers in Alaska and Hawaii via USPS Priority or appropriate UPS service and to international purchasers solely via UPS Worldwide Saver Service. We are not obligated to ship by any other method, and purchaser may make other shipping arrangements. We shall not, under any circumstances, be liable for the loss, theft or damage to property, including, but not limited to selection of shipper, the acts or omissions of any shipper or the acts or omissions occurring in packing for shipment. As a courtesy, we may provide quotes, based on an estimated size, weight and value of the package, as well as a shipping zip code supplied by a prospective bidder. Post-sale determination of shipping costs does not constitute grounds for cancellation of any purchase made at our auction. It is our intention to include the cost of shipping on the invoice for domestic continental purchasers, and this may result in a short delay in invoicing international purchasers and those in Alaska and Hawaii until the cost of shipment has been determined. International recipients will be responsible for paying duties and taxes associated with their packages. Shipment will not be made until all sums to us have been paid.
10. The copyright in the text of the catalog and the photographs, digital images and illustrations of lots in the catalog belong us and our licensors. You will not reproduce or permit anyone else to reproduce such text, photographs, digital images or illustrations without our prior written consent. We reserve the right to use all images of our auction lots on our site for archival and historical purposes.
11. These Terms and Conditions of Sale shall bind the successors and assigns of all bidders and purchasers and inure to the benefit of our successors and assigns. No waiver, amendment or modification of the terms hereof (other than posted notices or oral announcements during the sale) shall bind us unless specifically stated in writing and signed by us. If any part of these Terms and Conditions of Sale is for any reason invalid or unenforceable, the rest shall remain valid and enforceable.
12. These Terms and Conditions of Sale and the purchaser's and our respective rights and obligations hereunder are governed by the laws of the State of Illinois. By bidding at an auction, each purchaser and bidder agrees to be bound by these Terms and Conditions of Sale. Any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or validity thereof, brought by or against us shall be resolved by the procedures set forth below.
13. Within 30 days of written notice that there is a dispute, the parties or their authorized and empowered representatives may meet to mediate their differences. If the parties agree, a mutually acceptable mediator shall be selected and the parties will equally share such mediator's fees. The mediator shall be an attorney trained in mediation techniques and familiar with commercial law and the Illinois Uniform Commercial Code (UCC). Any statements made during the mediation process shall not be admissible in any subsequent arbitration or judicial proceeding. The proceedings and any resolution shall be confidential and the terms governing arbitration set forth in paragraph (c) below shall govern. If mediation does not resolve the dispute, or in any event no longer than 60 days after receipt of written notice referred to above, the parties shall submit the dispute for binding arbitration before a single neutral arbitrator selected from the panel of Arbitrators provided by the American Arbitration Association (AAA). If within 15 days the parties cannot agree on an arbitrator, then AAA shall select one person as arbitrator in accord with AAA rules. The arbitrator shall be an attorney, experienced in commercial law and with the UCC. The arbitrator shall be required to follow the law in making his award, which shall be in writing and set forth findings of fact and legal conclusions. Unless otherwise agreed to by the parties, (i) the arbitration shall occur within 60 days of the selection of the arbitrator in Chicago, Illinois; and (ii) discovery and the procedure for the arbitration shall follow the procedures and policies of AAA governing commercial arbitrations, subject to the following modifications: (1) All arbitration proceedings shall be confidential; (2) The parties shall attempt to agree on the issues to be arbitrated, in writing no later than 45 days prior to arbitration; (3) Discovery, if any, shall be limited as follows: (A) Requests for no more than 10 categories of documents, to be provided to the requesting party within 14 days of written request therefore; (B) No more than two (2) depositions per party, provided however, the deposition(s) are to be completed within one (1) day; and (C) Compliance with the above shall be enforced by the arbitrator in accordance with Illinois law; (4) Each party shall have no longer than eight (8) hours to present its position. The entire hearing before the arbitrator shall not take longer than three (3) consecutive days. The award shall be made in writing no more than 30 days following the end of the proceeding. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Each party shall bear its own attorneys' fees and costs in connection with the proceedings and shall share equally the fees and expenses of the arbitrator.
14. Subject to the terms and conditions of this paragraph, we warrant for a period of one year from the date of the sale that any property described in this catalog (as such description may be amended by any notice or announcement) which is stated without qualification to be the work of a named artist, is authentic and not a forgery. The term "artist" refers to the creator of the property or to the period, source or origin, as the case may be, with which the creation of such property is identified in the description of the property in this catalog. Our warranty does not apply to supplemental material in addition to the identification of the artist and does not extend to any errors or omissions in such material or to any statement of a qualified opinion and is subject to the following: (i) it does not apply where the catalog description or later notice corresponded to the generally accepted opinion of scholars or experts at the date of the sale or fairly indicated that there was a conflict of opinions; (ii) the benefits of the warranty are not assignable and shall apply only to the original buyer of the lot as shown on the invoice originally issued by us when the lot was sold at our auction; (iii) the original buyer must have remained the owner of the lot without disposing of any interest in it to any third party; (iv) the buyer's sole and exclusive remedy against us, in place of any other remedy which might be available, is the cancellation of the sale and the refund of the original purchase price paid for the lot; (v) we are not liable for any special, incidental or consequential damages including, without limitation, loss of or interest; (vi) the buyer must give written notice of a claim to us within one year from the date of the auction; (vii) we have the right, to require the buyer to obtain the written opinions of two recognized experts in the field, mutually acceptable to us and the buyer, before we decide whether or not to cancel the sale under the warranty; and (viii) the buyer must return the lot in the same condition as at the time of the sale.
