Conditions of Sale
CONDITIONS OF SALE
THESE CONDITIONS GOVERN THIS SALE: This Sixth Annual Sporting Art Auction ("Sale") is governed by these Terms and Conditions of Sale ("Conditions of Sale"), as may be amended by KCG Enterprises, LLC d/b/a The Sporting Art Auction ("KCG") by the posting of notices or by oral announcements made during the Sale from the auctioneer's stand or otherwise (such notices and announcements shall be collectively referred to herein as the "Announcements") (collectively, the "Conditions of Sale" and "Announcements" shall be referred to herein as the "Conditions," or, individually, a "Condition," as the context permits). All Sellers, agents, consignors, owners, prospective bidders, Purchasers, all other interested parties and all sales are therefore bound by and subject to these Conditions. By participating in the Sale, you acknowledge that you are bound by these Conditions.
Under these Conditions, "Seller" means a person or entity, including such person or entity's agent (other than KCG), consignor, successor-in- interest, executor, trustee or personal representative, offering property for sale or selling all or any interest in property sold at this Sale, and is referred to as "Owner" in the Consignment Agreement. "Purchaser" means a person or entity making the highest bid or offer accepted by the auctioneer at the fall of the hammer, and includes such person or entity's principal when bidding as agent.
1. KCG AS AGENT. Except as otherwise stated, KCG acts as agent for the Seller pursuant to the Consignment Agreement. The contract for sale of the property in this Sale is therefore made between the Seller of the property and the Purchaser.
2. PRESALE EXAM. All prospective purchasers and bidders are urged to examine carefully and personally (or by agents, as the principal deems appropriate) the property in which you may be interested to determine its condition, size and whether it has been repaired or restored, etc. BEFORE the Sale and BEFORE bidding, as you are accepting any property purchased with all faults, including all conditions and defects, except for the Limited Warranty set forth in the Limited Warranty of Authorship Condition. Neither KCG nor SELLER provides any guarantee or warranty of any kind in relation to the nature of the property apart from the Limited Warranty in Condition 9. Except for the Limited Warranty in Condition 9, the property is sold "AS IS," with all faults and defects.
3. PRIVACY NOTICE. Notice is hereby given to all participants that KCG may record any or all portions of the Sale by video, audio or other means, which may be used by KCG or its affiliates in KCG's sole discretion. You consent to the use, reproduction and distribution of such recordings, biographical and other information or descriptions, and images that may be provided, for inclusion in the catalogue or other marketing of the Sale or for any other advertising or promotional purpose by KCG or its affiliates, as deemed appropriate by KCG in its sole discretion.
4. RIGHT OF EXCLUSION. KCG expressly reserves its common-law right, at its sole discretion, to refuse admission to the premises or participation in any Sale and to reject any bid; provided, however, such refusal shall not be made on the basis of race, creed, color, national origin, sex, sexual orientation, political affiliation or beliefs. By accepting the license granted to the public by KCG to attend the Sale, you agree to be bound by these Conditions.
5. CATALOGUE AND DESCRIPTIONS. All statements in the catalogue entry for property, or made orally or in writing elsewhere, are statements of opinion and are not to be relied on as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by KCG of any kind. References in the catalogue entry to damage or restoration are for guidance only and should be evaluated by personal inspection by the bidder or a knowledgeable representative. The absence of such a reference does not imply that an item is free from defects or restoration, nor does a reference to particular defects imply the absence of any others. Estimates of the selling price should not be relied on as a statement that this is the price at which the item will sell or its value for any other purpose. Except for the Limited Warranty set forth in Condition 9, neither KCG nor Seller is responsible in any way for errors and omissions in the catalogue, Announcements, or any supplemental materials. You are responsible for satisfying yourself concerning the condition of the property and the matters referred to in the catalogue entry, the Announcements, and any supplemental materials.
6. BIDDING
a. BIDDING BY LOT. Unless otherwise stated in these Conditions, all bids are per lot as numbered in this catalogue.
b. DISCLOSURE AND RESERVE. In accordance with KRS 355.2- 328(4) and other applicable laws, the right to bid in this Sale is reserved for all Sellers, including their disclosed and undisclosed agents, unless otherwise announced at time of Sale. Purchasers therefore agree and acknowledge that Sellers have the right to set reserves implemented by the auctioneer upon property so entered which are not disclosed to Purchasers and also have the right to conduct by-bidding as related to their entries. No reserve will exceed the low presale estimate stated in the catalogue, or as may be amended by the Announcements. KCG may implement such reserve by opening the bidding on behalf of the Seller and may bid up to the amount of the reserve, by placing successive or consecutive bids for a lot, or bids in response to other bidders. In instances where KCG has an interest in the lot other than its commission, it may bid up to the reserve to protect such interest. Sales results reported by KCG may or may not reflect the fair market value of any property going through the Sale.
c. REGISTRATION. A prospective purchaser must complete and sign a Purchaser Registration Form and such other forms as KCG, in its sole discretion deems appropriate, and provide identification before bidding. KCG, in its sole discretion, may require the production of financial references, guarantees, deposits and/or such other security as KCG deems appropriate. If in KCG's sole
discretion a prospective purchaser does not satisy our registration procedures, KCG may refuse to register such prospective purchaser to bid or permit in the Sale or cancel the contract for sale between such prospective purchaser and the Seller.
d.BIDDING AS PRINCIPAL. When making a bid, a bidder is accepting personal liability to pay the entire Purchase Price, which shall mean the aggregate sum of (i) the highest bid recognized by the auctioneer at the fall of the hammer (the "hammer" price), plus (ii) the Buyer's Premium (as hereinafter defined), (iii) all applicable taxes, and (iv) all other applicable charges, which may include, for example, an additional fee and commission when bidding online (the amounts set forth in subparts (i) through (iv) of this paragraph (d) shall be collectively referred to herein as the "Purchase Price"), unless it has been explicitly agreed in writing with KCG before the commencement of the Sale that the bidder is acting as agent on behalf of an identified third party acceptable to KCG, and that KCG will only look to the principal for payment.
e. AUCTIONEER'S DISCRETION. The auctioneer has absolute and sole discretion with respect to bidding, to refuse any bid, to advance the bidding in such a manner as he may decide, to withdraw or divide any lot, to combine any two or more lots, and, in the case of error or dispute, whether during or after the sale, to determine the successful bidder, to continue or re-open the bidding, to cancel the sale or to re-offer and re-sell the item in dispute. If any dispute arises after the sale, KCG's sale record is conclusive. KCG, in its absolute and sole discretion, may execute order or absentee bids and accept telephone bids and online bids and will use reasonable efforts to carry out such bids; provided, however, KCG shall not be responsible for and does not accept any liability for any errors or omissions in connection therewith. These Conditions control and govern all sales through KCG.
f. BIDDING. KCG RESERVES THE RIGHT TO REJECT ANY BID. Subject to the auctioneer's discretion, as defined in paragraph (e) of this Condition 6, the highest bidder accepted by the auctioneer will be the Purchaser and the striking of the auctioneer's hammer marks the acceptance of the highest bid and the conclusion of a contract for sale between the Seller and the Purchaser.
g. BUYER'S PREMIUM. As part of the Purchase Price, Purchaser agrees to pay to KCG a Buyer's Premium, plus any applicable taxes and fees. The "Buyer's Premium" is fifteen percent (15%) of the hammer price of each lot up to and including $500,000, plus twelve and one-half percent (12.5%) of the hammer price of each lot in excess of $500,000 up to and including $1,000,000, plus five percent (5%) of the hammer prices of each lot in excess of $1,000,0000. The parties acknowledge there may also be a Seller's Premium, pursuant to the terms of the Consignment Agreement.
7. OBLIGATIONSOFPURCHASER
a. PAYMENT OF PURCHASE PRICE; TITLE AND RISK OF LOSS; DEFAULT; REMEDIES FOR NON-PAYMENT; GRANT OF SECURITY INTEREST. Subject to fulfillment of all of the conditions set forth herein, on the fall of the auctioneer's hammer, the contract between the Seller and the Purchaser is concluded, and the Purchaser thereupon will immediately pay the Purchase Price to KCG. Title and risk of loss in a purchased lot (including frames or glass where relevant) will not pass to the purchaser until KCG has received the full Purchase Price in cleared funds. KCG is not obligated to release a lot to the Purchaser until title to the lot has passed and any earlier release does not affect the passing of title or the Purchaser's unconditional obligation to pay the Purchase Price. If Purchaser fails to make timely payment of the full Purchase Price in cleared funds, the Purchaser will be in default and KCG, at its option, may exercise one (1) or more of the following rights or remedies (in addition to asserting any other rights or remedies available to KCG by law): (i) to impose from the date of Sale a late charge of eighteen percent (18%) of the total Purchase Price per annum if payment is not made within seven (7) days from the date of the Sale; (ii) to hold the defaulting purchaser liable for the total Purchase Price and to commence legal proceedings for its recovery together with interest, legal fees and costs to the fullest extent permitted under applicable law; (iii) to cancel the sale of the property; (iv) to resell the property, whether at public auction or by private sale; (v) to elect to pay the Seller any portion of the sale proceeds; (vi) to set off against any amounts KCG or any of its affiliates may owe to the defaulting purchaser in any other transactions, the outstanding amount remaining unpaid by the defaulting purchaser; (vii) where amounts are owed by the defaulting purchaser to KCG or any of its affiliates, in respect of different transaction, to apply any amount paid to discharge any amount owed in respect of any particular transaction, whether or not the defaulting purchaser so directs; (viii) to reject at any future auction any bids made by or on behalf of the defaulting purchaser or to obtain a deposit from the defaulting purchaser before accepting any bids; (ix) to exercise all the rights and remedies of a person holding security over any property in KCG's possession owned by the Purchaser, whether by way of pledge, security interest or in any other way, to the fullest extent permitted by the law; or (x) to take such other action as KCG deems necessary or appropriate. If KCG elects to resell the property under subparagraph (iv) above, the defaulting purchaser will be liable for payment of any deficiency between the total amount due to KCG and the price obtained upon resale as well as any and all costs, handling charges, late charges, expenses of both sales, KCG's commissions on both sales at KCG's regular rates, legal fees and expenses, collection fees and incidental damages. If KCG pays any amount to the Seller under subparagraph (v) above, the Purchaser acknowledges that KCG shall have all of the rights of the Seller, however arising, to pursue the Purchaser for such amount. In addition, each Purchaser grants and assigns to KCG a continuing security interest of first priority in any property or money of or owing to such Purchaser in KCG's possession or in the possession of any of its affiliated companies, and KCG may retain and apply such property or money as collateral security for the obligations due to KCG. KCG shall have all of the rights accorded a secured party under the Kentucky Uniform Commercial Code. KCG may file financing statements under the Kentucky Uniform Commercial Code (or any such applicable uniform commercial code if Purchaser is not a resident of Kentucky). Any claims relating to any purchase, including any claims under the Conditions, must be presented directly to KCG.
b. REMOVAL OF PURCHASED PROPERTY; DEFAULT. Unless otherwise agreed by KCG, all property must be removed from KCG's premises by the Purchaser at Purchaser's expense not later than fourteen (14) calendar days following the Sale. KCG's liability for loss or damage to sold property shall cease no later than fourteen (14) calendar days after the Sale. Where purchases are not collected within fourteen (14) calendar days from the date of the sale, whether or not payment has been made, KCG shall be permitted to remove the property to a third party warehouse at the Purchaser's expense, and only release the items after payment in full has been made of removal, storage, handling, insurance and any other costs incurred, together with payment of all other amounts due to KCG.
c. PACKING, SHIPPING AND INSURANCE. The Purchaser is solely responsible for packing, shipping and insuring (including reimbursement for damage or loss) purchased lots and will bear all costs associated therewith. KCG is not responsible for the acts or omissions in the packing or shipping of purchased lots. Packing, shipping and insuring purchased lots is at the entire risk of the Purchaser. Purchaser is responsible for obtaining adequate insurance coverage for any purchased lot(s) as of the fall of the hammer. Insurance costs through third-party carriers will be borne by the Purchaser and, in case of damage, insurance claims should be made to the third-party carriers.
8. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9, THERE IS NO WARRANTY OR GUARANTEE OF ANY KIND WITH RESPECT TO ANY PROPERTY OR ANY DESCRIPTION THEREOF, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES BY KCG OR SELLER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE CORRECTNESS OF THE CATALOGUE OR OTHER DESCRIPTION OF THE PHYSICAL CONDITION, SIZE, QUALITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITIONS, LITERATURE OR HISTORICAL RELEVANCE OF ANY PROPERTY. NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE IN THE CATALOGUE, AN ADVERTISEMENT, A SALESROOM POSTING OR ANNOUNCEMENT, OR ELSEWHERE, SHALL BE DEEMED SUCH A WARRANTY, REPRESENTATION OR ASSUMPTION OF LIABILITY. KCG AND SELLER MAKE NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO WHETHER THE PURCHASER ACQUIRES ANY COPYRIGHTS OR LICENSES, INCLUDING BUT NOT LIMITED TO, ANY REPRODUCTION RIGHTS IN ANY PROPERTY. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9, KCG IS NOT RESPONSIBLE FOR ERRORS AND OMISSIONS IN THE CATALOGUE, GLOSSARY, OR ANY SUPPLEMENTAL MATERIALS. EXCEPT FOR THE LIMITED WARRANTY OF AUTHORSHIP EXPRESSLY STATED IN CONDITION 9, ALL SALES ARE MADE AS IS, WITH ALL FAULTS.
9. LIMITED WARRANTY OF AUTHORSHIP. As set forth below and in the Conditions of Sale and Announcements, KCG guarantees that the authorship, period, culture or origin, as the case may be (collectively "Authorship") is as set out in the BOLD or CAPITALIZED type heading in the catalogue description of the lot, as may be amended by the Announcements ("Authorship Limited Warranty"). The Authorship Limited Warranty does not extend to any information other than that contained in the heading even if shown in BOLD or CAPITALIZED text. Only BOLD or CAPITALIZED text in the heading indicates what is being warranted by KCG pursuant to the Authorship Limited Warranty. The Authorship Limited Warranty does not apply to supplemental material which appears below the BOLD or CAPITALIZED headings of each lot, and KCG is not responsible for any errors or omissions in such material. Notwithstanding anything herein to the contrary, the Authorship Limited Warranty does not apply to any heading or part of a heading that is qualified. Qualified means limited by a clarification in a Lot's description or by the use in a heading of one of the terms listed in the section titled Glossary for Painting and Sculpture in the auction catalogue. For example, use of the term "attributed to" in a heading means that the Lot is in KCG's probably a work by the named artist but no warranty is provided that the Lot is the work of the named artist, and this Authorship Limited Warranty would not apply to any such opinion. KCG, in its reasonable discretion, shall determine whether the conditions for return of the property based on breach of the Authorship Limited Warranty have been satisfied. If so, KCG will refund the original Purchaser of record the Purchase Price. This Authorship Limited Warranty does not apply if: (i) the catalogue description was in accordance with the opinion(s) of generally accepted scholar(s) and expert(s) at the date of the Sale, or the catalogue description indicated that there was a conflict of such opinions; or (ii) the only method of establishing that the Authorship was not as described in the bold or capitalized heading at the date of the Sale would have been by means or processes not then generally available or accepted, unreasonably expensive or impractical to use or likely (in KCG's reasonable opinion) to have caused damage to the Lot or likely to have caused loss of value to the Lot; or (iii) there has been no material loss in value of the lot from its value had it been in accordance with its description in the bold or capitalized type heading. This Authorship Limited Warranty is provided for a period of one (1) year from the date of the relevant auction, is solely for the benefit of the original Purchaser of record at the auction and may not be transferred to any third party. To be able to claim under this Authorship Limited Warranty, the original Purchaser of record must: (i) notify KCG in writing within three (3) months of receiving any information that causes the original Purchaser of record to question the accuracy of the bold or capitalized type heading, specifying the lot number, date of the Sale at which it was purchased and the reasons for such question; and (ii) return the lot to KCG at the original selling location in the same condition as at the date of the Sale to the original Purchaser of record and be able to transfer good title to the lot, free from any third party claims arising after the date of the Sale. KCG has discretion to waive any of the above requirements. KCG may require the original Purchaser of record to obtain, at the original Purchaser of record's cost, the reports of two (2) independent and recognized experts in the field, mutually acceptable to KCG and the original Purchaser of record. KCG shall not be bound by any reports produced by the original Purchaser of record, and reserves the right to seek additional expert advice at its own expense. It is specifically understood and agreed that the rescission of a Sale and the refund of the original Purchase Price paid is exclusive and in lieu of any other remedy which might otherwise be available as a matter of law, or in equity. KCG and the Seller shall not be liable for any incidental or consequential damages incurred or claimed, including without limitation, attorneys' fees, loss of profits or interest.
10.DISCLAIMER OF IMPLIED DUTIES. KCG shall endeavor to protect the interests of all parties, but the duties and obligations of KCG to such persons shall be strictly limited to those expressly imposed upon KCG by these Conditions. All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon KCG by operation of law, are hereby expressly disclaimed, except that KCG shall be required to exercise that standard of care generally exercised by other comparable art auction companies.
11.RIGHT TO WITHDRAW. KCG retains the right to withdraw any property at any time before the sale for any reason in its sole discretion. KCG shall have no liability whatsoever for such withdrawal.
12. MISCELLANEOUS
a. COPYRIGHT. The copyright in all images, illustrations and written material produced by or for KCG relating to a lot, including, without limitation, the contents of the catalogue, is and shall remain at all times the property of KCG and shall not be used by the Purchaser, or by anyone else, without prior written consent of KCG. KCG and Seller make no representation or warranty that the Purchaser of a lot will acquire any copyright or other reproduction rights in it.
b. SEVERABILITY. The invalidity or unenforceability of any provision of these Conditions of Sale shall not affect the validity or enforceability of any other provision hereof, and any such invalid or unenforceable provision shall be deemed to be severable to the fullest extent permitted by law.
c. TAXES. Unless otherwise exempted by law, the Purchaser will be required to pay any Kentucky sales and use tax, any applicable compensating use tax of another state, and, if applicable, any federal luxury or other tax on the total Purchase Price.
d. MERGER OF AGREEMENT. The Seller, owner, or KCG may have made oral statements or published advertisements concerning the condition of the property described in this catalogue or this sale generally. Such statements or advertisements do not constitute warranties, shall not be relied upon by the Purchasers and are not part of the contract for sale. The entire contract of sale is embodied in these Conditions of Sale, the Announcements, and with respect to the Seller, the Consignment Agreement. These aforementioned documents constitute the final expression of the parties' agreement, and are a complete and exclusive statement of that agreement. Notwithstanding the above, Seller, owner and Purchaser may enter into an agreement which modifies the limited warranties as provided herein; however, any such action by the Seller, owner and Purchaser cannot and shall not modify or alter the duties, responsibilities and rights of KCG as provided in these Conditions and the Consignment Agreement.
e. FORCE MAJEURE. The lack of performance hereunder by KCG shall be excused without liability if the failure to perform is due to an act of God, fire, casualty, act or decision of a governmental authority, injunction, strike or labor dispute, or any other cause beyond the control of KCG. The invalidity or unenforceability of any provision of these Conditions shall not affect the validity or enforceability of any other provision hereof, and any such invalid or unenforceable provision shall be deemed to be severable.
f. HEADINGS. The descriptive headings of these Conditions of Sale are inserted for convenience only and shall not constitute a part of these Conditions of Sale.
g. LIMITATION OF ACTION. Any cause of action arising out of the purchase and sale of any property at this Sale, whether it is based in contract or tort, shall be commenced not more than one (1) year after the sale or be forever barred. Provided, however, this limitation of action shall not apply to an action for the recovery from the Purchaser of the Purchase Price, plus interest and expenses, and including repossession of the property purchased at this Sale.
h. GOVERNING LAWS; VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. The laws of the Commonwealth of Kentucky shall govern the construction of these Conditions and the rights, remedies and duties of the parties hereto. In the event of any litigation arising out of these Conditions or the transactions contemplated hereby, the parties agree that any action or suit shall be brought in a court of record in the County of Fayette, Commonwealth of Kentucky, or in the United States District Court for the Eastern District of Kentucky, and the parties hereby consent to the venue and jurisdiction of such courts. The owner, Seller, Purchaser and KCG and their respective agents, voluntarily and intentionally waive any right that they may have to a trial by jury in respect to any litigation arising from or connected with this sale.
i. LIMITATION OF LIABILITY. In no event will KCG's liability to a Purchaser exceed the purchase price actually paid.
j. PERSONAL INFORMATION. The information KCH collects and its use policies are set forth in more detail in Keeneland's Privacy Policy, which is fully incorporated into these Conditions of Sale by reference. To the extent there is any conflict between these Conditions of Sale and Keeneland's Privacy Policy, these Conditions of Sale govern.
k. NO WAIVER. The failure of KCG to exercise or enforce any right or provision of these Conditions shall not constitute a waiver of such right or provision, and no waiver of any term of these Conditions shall be deemed a further or continuing waiver of such term or any other term.
ONLINE BIDDING
The Sporting Art Auction will accept bids from patrons in person, by phone through prior arrangement, and online via:
www.liveauctioneers.com | www.invaluable.com
ABSENTEE BIDDING INFORMATION
As a convenience to clients who cannot attend the auction, KCG will execute absentee bids without charge. Bids will be executed to purchase the Lots requested as inexpensively as will be permitted by other bids for those Lots. Bids should be submitted as early as possible and should be dated. In the event of identical bids, KCG has sole and complete discretion as to which bid to execute, but the first bid received normally will take preference.
Bids submitted for each Lot should be in the maximum amount you would bid in attendance. KCG does not execute "Absolute Buy" bids. All bids must be submitted with a maximum amount. Unsuccessful bids are generally not acknowledged.
To avoid delay in removing purchases, buyers planning to pay with a personal or business check are advised to supply us with a bank letter of credit prior to auction. All bids are subject to the "Conditions of Sale" which appear in this catalogue.
WHILE EVERY EFFORT IS MADE TO PROPERLY EXECUTE ABSENTEE BIDS, KCG WILL NOT BE RESPONSIBLE FOR ERRORS OR FAILURE TO EXECUTE SUCH BIDS.
For additional information on absentee bids, please contact KCG at: Tel (859) 233-3856.
SHIPMENT OF PURCHASES
If your bid is successful, KCG can help arrange shipment of your purchases to you. Estimates for the shipping of any purchases can be attained through KCG. All purchases must be removed no later than Wednesday, November 21, 2018. A paid receipt must be presented to KCG staff in order to release any property. Keeneland is not responsible for the acts or omissions in the packing or shipping of purchased lots, and packing , shipping and insuring purchased lots is at the entire risk of the purchaser as set forth on the "Conditions of Sale," which appear in this catalogue.
Please note the "Conditions of Sale" which appear in this catalogue concerning prompt payment and clearance. In default of these Conditions of Sale, lots may be transferred to a public warehouse at the risk and cost of the buyer.
