TERMS OF SALE
CONDITIONS OF SALE Please read these Conditions of Sale carefully. Other than as specified below, these Conditions of Sale contain all of the terms and conditions upon which Bermingham & Co. and the seller contract with the buyer regarding the Bermingham & Co. auction experience. They may be amended, from time to time and in the sole discretion of Bermingham & Co., by posted and/or catalogue notices or oral announcements made by Bermingham & Co. prior to or during the sale. By bidding at auction, you agree to be bound by these Conditions of Sale. 1. BEFORE THE SALE Except as stated in the Limited Warranty in Section 6 below, all property is sold in ?AS IS? condition without any representation or warranty of any kind by Bermingham & Co. or the seller. Buyers are solely responsible for satisfying themselves concerning the condition of the property and the matters referred to in the catalogue entry. (a) Examination of Property. Prospective buyers are solely responsible for carrying out inspections and investigations to satisfy themselves as to the lots in which they may be interested. Prospective buyers are strongly advised to examine personally any property in which they are interested, before the auction takes place. If a bidder is unable to view and inspect an item in person, they are responsible for requesting/obtaining a condition report and/or additional photographs prior to bidding to determine an article?s condition, size, and any other pertinent information. We strive to be fair and forthright with our descriptions and condition reports, however, bidders must understand, and hereby acknowledge, that antique items often show normal signs of use and wear, which might not be specified in a condition report. It is advisable and recommended that you inspect items in person, as your definition of condition may be more exacting than a specialist could have time to verify. (b) Condition Reports. Condition reports are provided as a courtesy to interested clients to assist clients in performing inspection of the property. Prospective buyers should note, and hereby acknowledge, that descriptions of property are not warranties and that each lot is sold ?AS IS?. Our specialists will respond to condition report requests as quickly as reasonably possible, however, please be patient. We get many requests and we make every effort to respond to all of them in a timely fashion. Bermingham & Co. reserves the right to reject condition report/additional photograph requests for any reason. (c) Catalogue and Other Descriptions. All statements by us in the catalogue entry for the property or in the condition report, or made orally or in writing elsewhere, are statements of opinion only and are not to be relied upon as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by us of any kind. References in the catalogue entry or the condition report to damage or restoration are for informational and guidance purposes only. The absence of such a reference does not imply that an item is free from damage, defects, or restoration, nor does a reference to a particular defect imply the absence of any others. Unless otherwise stated, all dimensions are approximate and illustrations are for identification purposes only, and cannot be used as precise indicators of size or to convey full information as to the actual conditions of lots. Please also refer to our Notices and Explanation of Cataloguing Practices in Section 6 below for additional information on our catalog listings. (d) Selling Price Estimates. Estimates of the selling price should not be relied upon as a prediction or statement that that is the price at which the item will sell or its value for any other purpose. Price estimates may be revised from time to time by Bermingham & Co. in our absolute discretion. Neither Bermingham & Co. nor any of our affiliated companies shall be liable for any difference between the pre-sale estimates for any lot and the actual price achieved at auction or upon resale. Except as set forth in Section 6 (Limited Warranty) below, neither Bermingham & Co. nor the seller is responsible in any way for errors and omissions in the catalogue or any supplemental material. (e) Reserves. In certain instances, lots offered may be subject to a ?reserve?, which is the confidential minimum price agreed upon by the seller and Bermingham & Co. below which an auction lot will not be sold. In all instances, unless otherwise indicated by posted or catalogue notices or oral announcements made by Bermingham & Co. prior to or during the sale, the reserve will not exceed the low estimate printed in the catalogue. 2. DURING THE SALE Bidders are welcome to participate in a sale/auction by one of the following methods: (i) leaving absentee bids, (ii) reserving a telephone for an auction lot, (iii) leaving a bid through our website, or (iv) bidding live via the internet through Live Auctioneers. Bermingham & Co. and the auctioneer have the right, at their complete discretion, to refuse participation in any auction and to reject any bid. (a) Absentee Bids. As a convenience to bidders who cannot attend the auction in person, Bermingham & Co. may, if so instructed by the bidder, execute written absentee bids on a bidder?s behalf, in accordance with the terms and conditions of this agreement. Bermingham & Co. requires all absentee bids be submitted by no later than 7:00 p.m. on the business day prior to the auction. If you fax your absentee bids, please call to confirm receipt. You must clearly indicate the maximum amount you intend to bid, excluding the premium and any taxes or charges. All absentee bidding is handled as though you are in attendance. Bermingham & Co. will purchase all designated lots for you one bidding increment above where competition stops. Absentee bidding is a convenience offered to our customers and, while we will exercise reasonable effort to execute your instructions, Bermingham & Co. is not liable or responsible for any errors or failure to do so. Bidding increments are as follows: From To Increment $0 $499 $25.00 $500 $999 $50.00 $1,000 $1,999 $100.00 $2,000 $4,999 $200.00 $5,000 $9,999 $250.00 $10,000 $19,999 $1,000.00 $20,000 $49,999 $2,000.00 $50,000 $100,000 $5,000.00 $100,000 & above $10,000.00 All bidders should check and must comply with these increments. In case of failure to comply, we will increase each off-increment bid to the next higher figure. ?Plus? bids: You may designate your absentee bid as a ?plus? bid. Because of our structured bidding increments, it is more likely that several people will leave identical absentee bids. In the event of a tie between written/absentee bids, the ?plus? designation allows your bid to automatically increase to the next increment and this may allow you to win the lot. Please be aware that if you designate your absentee bid as a ?plus? bid, you acknowledge and agree to pay the full price of the next increment. (NOTE: Absentee bids left via a third party online auction service provider as described below in Section 2(c) are sent to the auction house during the actual sale. There is no time advantage to leaving bids in this fashion.) (b) Phone Bids. Bermingham & Co. also provides the opportunity for you to ?reserve? a phone line for the day of the auction in order to bid on a lot (or lots) via telephone. Bermingham & Co. requires that all telephone line requests be submitted no later than 7:00 p.m. on the business day prior to the auction. If you transmit your phone bids to Bermingham & Co. via facsimile, please call to confirm receipt. Please be aware that if you elect to bid via telephone, you must be willing to bid to the low estimate should the bidding go that far. There is no exception to this rule. All requests for overseas telephone lines must be accompanied by absentee bids, which will be executed on the buyer?s behalf, should there be a problem executing the telephone bid. You hereby consent to the recording of such phone bids, which may be recorded at the discretion of Bermingham & Co. Bermingham & Co. has several employees working the phones on auction days, and these employees will call bidders who wish to participate via telephone bidding a few lots prior to the lot in which the bidders are interested comes up for auction. If you ?reserve? a phone line, you will pre-schedule Bermingham & Co. calling you prior to the lot hitting the auction block. Please be aware that Bermingham & Co. has limited phone lines available on the day of the auction. If the bidder does not reserve a telephone line by 7:00 p.m. on the business day prior to the auction, it is likely that Bermingham & Co. will not have someone available to call you in order for you to place your bid via phone. Bermingham & Co. has no obligation to have employees working phone lines during an auction and offers this service as a courtesy, not obligation, and bears no responsibility or liability in the event a phone line is not available for any particular lot or lots. (c) Internet Bids via Live Auctioneers. You may also bid online via our third party online auction service providers. Currently, Bermingham & Co. uses Live Auctioneers as its third party online auction service providers. You may access this online bidding option at URLs www.liveauctioneers. Note that, as third party service providers, use of the such online bidding is subject to third party terms and conditions of service, which may be different than these Conditions of Sale. While Bermingham & Co. attempts to work with reputable service providers, Bermingham & Co. is not responsible for and has no control over the terms and conditions of its third party service providers. Use of Internet bidding through such third party sites is solely at your own risk. We encourage you to review such third party service providers? terms and conditions of service carefully prior to registering and using their services. Bermingham & Co. is not responsible for any equipment failure, inability to access the Internet or software malfunctions related to the execution of online bids. Note also that submitting bids through the Internet via Bermingham & Co.?s third party online auction service providers may add an additional buyer?s premium and/or processing fee that will be included in the Purchase Price (as defined below). (d) Bidding Process. The auctioneer will commence and advance the bidding at levels and in increments set forth above. The auctioneer may open the bidding on any lot 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. With respect to lots that are offered without reserve, unless there are already competing bids, the auctioneer, in his or her discretion, will generally open the bidding at half of the low estimate for the lot. For example, a lot estimated at $1,000 - $1,500, with no reserve, will normally open at $500. If there are absentee bids for $600 and $800, the lot will not be sold for less than $650 (one increment above the next highest bidder). When making a bid, you are accepting personal liability to pay the Purchase Price, including the premium and all applicable taxes and other charges. The sale will be conducted in U.S. dollars and payment is due in U.S. dollars. If you leave an absentee bid, absentee bids will be executed as if the bidder were present at the auction with the earliest bid received having preference in the event of a tie between absentee bidders. Floor bids will be taken over absentee bids in the event of a tie, unless the absentee bid is designated as a ?plus? bid. Absentee bids are handled in a competitive manner in an attempt to buy the object for less than your top bid. You will pay one bid above the next highest bid, but no more than your maximum. Floor bids, phone bids, internet bids, and absentee bids are all independent operations in an auction. Bids are executed in competition with one another on an alternate basis; therefore, we cannot guarantee which will reach a certain point in the bidding first. You expressly acknowledge and agree that you are not guaranteed an item even if your bid matches the winning bid. (e) Auctioneer?s Discretion. Bermingham & Co. and the auctioneer have the right at their absolute and sole discretion 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, and whether during or after the sale, to determine the successful bidder, to continue the bidding, to cancel the sale or to re-offer and resell the item in dispute. In the event of a dispute between bidders, the auctioneer has final discretion to determine the successful bidder or to reoffer the lot in dispute. If any dispute arises after the sale, Bermingham & Co.?s sale record is conclusive. (f) Successful Bid and Passing of Risk. Subject to the auctioneer?s discretion, the highest bidder accepted by the auctioneer will be the buyer and the striking of his hammer marks the acceptance of the highest bid and the creation of a legally binding contract for sale between the seller and the buyer for the amount of the bid plus any premium, tax, or other charge. Failure to pay after becoming the winning bidder is a breach of such contract and Bermingham & Co. and the seller may take action against you as provided in Section 3(d) below. Risk and responsibility for the lot (including frames or glass where relevant) passes to the buyer at the striking of the auctioneer?s hammer accepting the highest bid and creating the contract between seller and buyer. 3. AFTER THE SALE (a) Sales Results. Auction results are available at www.LiveAuctioneers.com as soon as Bermingham & Co. has audited and verified all sales. (b) Buyer?s Premium. The buyer agrees to pay us, in addition to the hammer price of the lot, the buyer?s premium and any applicable sales tax, which are added to the total cost of your purchase (together, the ?Purchase Price?). A buyer?s premium of 20% will be added to the successful bid price of each lot that you purchase. Third-party bid sites may charge you a fee in addition to the auction house?s buyer?s premium. Buyers will be required to pay the State of New Jersey Sales Tax of 6.625% at the time of payment unless the items are shipped out of New Jersey by commercial carrier supplying a Bill of Lading to Bermingham & Co., or the buyer provides Bermingham & Co. with a valid Tax Exemption Number and fills out an Exemption Certificate (available upon request). This is New Jersey Law and applies to anyone picking up items, regardless if you live or bid on the items outside the State of New Jersey. (c) Payment and Passing of Title. All successful bidders will be sent invoices by mail or e-mail the first business day after the auction. All property shall be paid for by the purchaser within five (5) business days of the sale. Bermingham & Co. accepts cash (in house only), personal checks, business checks, certified checks, and money orders. We accept all major credit cards or items can be paid directly through LiveAuctioneers.com. Please note that, for authentication, verification, and guarantee purposes, when registering to bid at auction, Bermingham & Co. requires buyers to provide a valid credit card number. In the event buyer does not pay for lots won as set forth herein, buyer specifically acknowledges and agrees that Bermingham & Co. may charge buyer?s credit card for the entire Purchase Price on the sixth business day following the auction. Please note our policy regarding payments from international buyers: the only acceptable method of payment for purchases made outside the U.S. is via bank wire/bank transfer. For invoices more than $1,000.00, there is no additional fee for this service. For invoices less than $1,000.00, an additional $25 wire fee will be included in the invoice total. We will forward our bank wiring information/instructions after completion of the auction. Thank you for your understanding and cooperation. Bermingham & Co. is not obliged to release a lot to the buyer until full payment has been received and appropriate identification has been provided, and any earlier release does not affect the passing of title or the buyer?s unconditional obligation to pay the Purchase Price (d) Remedies for Non-Payment. At our option, payment will not be deemed to have been made in full until we have collected funds represented by checks, or in the case of bank or cashier?s checks, we have confirmed their authenticity. If the buyer fails to make payment in full in good cleared funds within five (5) business days of the sale as required by Section 3(c) above, Bermingham & Co. shall be entitled in its sole and absolute discretion to exercise any one or more of the following rights or remedies (in addition to asserting any other rights or remedies available to us by law or in equity): (i) to charge interest at the U.S. prime rate as set forth in the Wall Street Journal on the day of auction or, if the auction is on a weekend, the business day immediately preceding the auction day, plus 2%; (ii) to hold the defaulting buyer liable for the total amount due (i.e., the high bid on lot(s) plus buyer?s premium plus tax plus charges set forth in Section 3(e) below), and to commence legal proceedings to recover the hammer price, buyer?s premium plus tax for any/all lots, together with interest and the costs of such proceedings, including attorneys? fees and costs to the fullest extent permitted under applicable law; (iii) to cancel the sale and relist or resell any/all lots at auction, with the buyer liable for any deficiency, cost, including handling charges, the expenses of both sales, our commission on both sales at our regular rate, all other charges due hereunder and incidental damages; (iv) set off the outstanding amount remaining unpaid by the buyer against any amounts which we or any of our affiliated companies may owe the buyer in any other transactions; (v) to not allow any bids at any upcoming auction by or on behalf of the buyer; and/or (vi) to take other action as we find necessary or appropriate. In addition, a defaulting buyer will be deemed to have granted us a security interest in, and we may retain as collateral security for such purchasers obligations to us, any property in our possession owned by such purchaser. (e) Pickups. All purchases must be removed from Bermingham & Co. within 15 days after the auction. Normal pickup hours are Monday - Friday 10:00 a.m. - 4:00 p.m. Bermingham & Co. provides an additional 15-day grace period which allows for a total of 30 days for buyers to retrieve their items. After 30 days, if the buyer?s items remain in the custody of Bermingham & Co., the buyer must provide the name of the shipping company along with the date of pick-up. If the items are not picked-up after 60 days, a daily storage fee will be charged and the beginning date for calculation of the storage fee shall be day 31 after the day of the auction. The storage fee must be paid prior to release of the product. Storage fees are as follows: Small ($1.00 per day, per lot) Decorative arts Fine arts Jewelry Medium ($2.00 per day, per item) Benches & stools Carpets Carvings Chandeliers Coffee, nesting, & end tables Dining chairs (1-2) Floor lamps Mirrors Pedestals Sconces Large ($4.00 per day, per item) Beds & daybeds Commodes Console Tables Desks Dining Chairs (3-6) Lounge, club, & bergere chair Vitrines Extra Large ($6.00 per day per item) Armoires Cabinets Dining Chairs (7+) Dining room tables Garden/Architectural Settees, couches, & sofas Sideboards & servers Buyers and/or their shippers must pack/wrap and load their items. The week following the sale, Bermingham & Co. will provide labor to help buyers/shippers with their purchases. If items are picked up after the first week, please be aware that labor may not be available to assist buyers/shippers with their purchases. Bermingham & Co. has no liability for damage to property left on its premises or off-site storage facility prior to pick up by the buyer. Property that has been paid for but remains unclaimed for more than 120 may revert to Bermingham & Co. in accordance with New Jersey law. (f) Shipping. Shipping is the responsibility of the buyer. Bermingham & Co. does not provide in-house shipping. We can, however, provide a list of reputable shippers upon request. All pickups or shipping arrangements should be made as soon as possible and, in all events, in accordance with Section 3(e), above. (g) Export License. Before bidding for any property, prospective buyers are advised to make their own inquiries as to whether a license is required to export a lot from the United States or to import it into another country. Prospective buyers are advised that some countries prohibit the import of property made of or incorporating certain wood, plant, and/or animal material, such as coral, crocodile, ivory, whalebone, Brazilian rosewood, rhinoceros horn, or tortoiseshell, irrespective of age, percentage, or value. Accordingly, prior to bidding, prospective buyers considering export of purchased lots should familiarize themselves with relevant export and import regulations of the countries concerned. It is solely the buyer?s responsibility to comply with these laws and to obtain any necessary export, import, and endangered species licenses or permits. Failure to obtain a license or permit or delay in so doing will not justify the cancellation of the sale or any delay in making full payment for the lot(s). Unless otherwise agreed to by Bermingham & Co. in writing, the fact that a buyer wishes or may intend to apply for an export license does not affect his or her obligation to make payment immediately upon receipt of Bermingham & Co.?s post-auction invoice, nor Bermingham & Co.?s right to charge interest and/or storage charges for late payment as set forth herein as well as in accordance with the laws of the State of New Jersey. We shall not be obliged to rescind a sale nor to refund any interest or other expenses incurred by the buyer in circumstances where an export license is required. 4. INDEMNIFICATION (a) Your Indemnification Obligation. You agree to indemnify, defend, and hold harmless Bermingham & Co. and its officers, employees, agents, sellers, and representatives from and against any claims, losses, damages, liabilities, and all fees (including attorneys? fees), costs, and expenses (each, a ?Claim?) arising out of or resulting from (i) your use of or participation in any or all of the Bermingham & Co. auction experience, including use of the Bermingham & Co. website, telephone lines, etc.; or (ii) any breach of the terms and conditions of these Conditions of Sale. (b) Procedure. Upon being notified of a Claim, Bermingham & Co. shall, as promptly as reasonably possible, (a) give you written notice of the Claim; (b) grant you sole control of the defense and settlement of the Claim, provided that you cannot settle the Claim without fully releasing Bermingham & Co. or without Bermingham & Co.?s prior written consent; and (c) provide you with reasonable assistance, at your expense. 5. BUYER?S WARRANTY By participating in the auction, whether in person, by absentee bid, on the telephone, or online, each prospective buyer represents and warrants that (i) any bids placed by such person, or on such person?s behalf, are not the product of any collusive or other anti-competitive agreement and are otherwise consistent with federal and state antitrust law, (ii) if he or she is the successful bidder on an item, he or she will promptly and timely pay the full Purchase Price for that item. 6. LIMITED WARRANTY Except as set forth in this Section 6, neither Bermingham & Co. nor the seller is responsible in any way for errors and omissions in the catalogue or any supplemental material. (a) Limited Warranty. Bermingham & Co. offers a 30-day limited warranty as described below in this Section 6 for items sold through its auction. It is the buyer?s responsibility to make payment for property in a timely fashion such that the property can be released and inspected within this 30-day limited warranty time frame. Should the buyer not do so, or should the buyer request Bermingham & Co. to delay shipment, should buyer give an incorrect shipping address, or be unavailable to receive shipment, the 30-day warranty period shall still apply and begin to run on the day immediately following the auction date (hereinafter, such start date for the warranty, whether the action date or the day immediately following the auction date shall be referred to as the ?Warranty Start Date?). Subject to the terms and conditions of this Section, Bermingham & Co. warrants for a period of 30 days from the Warranty Start Date that any fine or decorative works of art described in the auction catalogue (as such description may be amended by any saleroom and/or catalogue notice or announcement) which is stated without qualification to be the work of a named author or authorship, is authentic and not a forgery as follows: Fine and decorative works of art are subject to the following guarantees and conditions: 1. Henry Bayley Snell In Bermingham & Co.?s opinion a work by the artist. 2. Attributed to Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a work of the period of the artist which may be in whole or part the work of the artist. 3. Circle of Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a work of the period of the artist and closely related in his style. 4. Studio of Workshop of Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a work possibly executed under the supervision of the artist. 5. School of Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a work by a pupil or follower of the artist. 6. Manner of Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a work in the style of the artist, possibly of a later period. 7. After Henry Bayley Snell* In Bermingham & Co.?s qualified opinion a copy of the work of the artist. 8. ?signed? Has a signature which in Bermingham & Co. qualified opinion is the signature of the artist. 9. ?bears signature? Has a signature which in Bermingham & Co.?s qualified opinion might be the signature of the artist. 10. ?dated? Is so dated and in Bermingham & Co.?s qualified opinion was executed at about that date. 11. ?bears date? Is so dated and in Bermingham & Co. qualified opinion may have been executed at about that date. *This term and its definition are a qualified statement as to authorship. While the use of this term is based upon careful study and represents the opinion of experts, Bermingham & Co. and the consignor assume no risk, liability, and/or responsibility for the authenticity of authorship of any lot in this catalogue described by this term. Within the 30-day limited warranty period, Bermingham & Co. will allow the buyer to submit, at his/her own expense, an opinion in writing from a recognized expert, approved by both Bermingham & Co. and the buyer beforehand, regarding authenticity. Such inspection must be performed in person and not be based on photographs, facsimile, email, verbal, or other written or oral description. In the event the work is judged inauthentic by the expert, the work may be returned in the same condition as at time of sale and, as a result of the limited warranty above, the buyer?s full purchase price will be refunded. Bermingham & Co. has no obligation to accept any work that is returned in worse condition than when it was sold to buyer. Refunds shall not include costs of transportation, insurance, or other expenses that may have been incurred by the buyer. The term ?author? or ?authorship? refers to the creator of the property or to the period, culture, source, or origin, as the case may be, with which the creation of such property is identified in the description of the property in the relevant catalogue. (b) Exclusions. This warranty does not apply to any heading that is stated to represent a qualified opinion. Bermingham & Co.?s warranty does not apply to supplemental material, which appears below the heading of each lot, and Bermingham & Co. is not responsible for any errors or omissions in such material. (c) DISCLAIMER OF WARRANTIES (i) Property and Property Descriptions. Except for the Limited Warranty is Section 6(a) and 6(b), above, neither Bermingham & Co. nor any of our officers, employees, agents, sellers, auctioneers, or representatives are responsible for the correctness of any statement of whatever kind concerning any lot, whether written or oral, nor for any other errors or omissions in description or for any faults, damage, or defects in any lot. Except for the Limited Warranty is Section 6(a) and 6(b), neither Bermingham & Co. nor any of our officers, employees, agents, sellers, auctioneers, or representatives makes any express or implied warranty or representation of any kind or nature with respect to merchantability, fitness for purpose, correctness of the catalogue, or other description of the physical condition, size, quality, rarity, importance, medium, material, genuineness, attribution, provenance, period, culture, source, origin, exhibitions, literature, or historical significance of any lot sold. The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging. No statement, whether written or oral, and whether made in the catalogue, or in supplements to the catalogue, an advertisement, a bill of sale, a salesroom posting or announcement, the remarks of an auctioneer, or otherwise, shall be deemed to create any warranty, representation, or assumption of liability. (ii) Copyright. Bermingham & Co. and its sellers make no warranty or representation, express or implied, that the buyer will acquire any copyright or reproduction rights to any lot sold. Bermingham & Co. expressly reserves the right to reproduce any image of the lots sold in the catalogue. The copyright in all images, illustrations and written material produced by or for Bermingham & Co. relating to any auction lot, including the contents of Bermingham & Co.?s auction catalogues, is and shall remain at all times the property of Bermingham & Co. and shall not be used by the buyer, nor by anyone else, without our prior written consent. (iii) General. Except as stated in this Section 6, neither the seller, Bermingham & Co., our officers, employees, agents, auctioneers, or representatives, give any representation, warranty, or guarantee or assume any liability of any kind in respect of any lot with regard to merchantability, fitness for a particular purpose, description, size, quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature, or historical relevance. Except as required by local law, any (and all) warranty of any kind whatsoever is specifically excluded by this section. 7. LIMIT ON LIABILITY (a) LIMIT ON TYPE OF DAMAGES. IN NO EVENT SHALL BERMINGHAM & CO. OR ITS OFFICERS, EMPLOYEES, REPRESENTATIVES, OR AGENTS HAVE ANY LIABILITY FOR ANY LOSS OF PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT BERMINGHAM & CO. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) LIMIT ON AMOUNT OF DAMAGES. IN NO EVENT SHALL BERMINGHAM & CO.?S OR ITS OFFICERS?, EMPLOYEES?, REPRESENTATIVES?, OR AGENTS? AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS OF SALE, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO BERMINGHAM & CO. BY THE RELEVANT BUYER FOR ITEMS PURCHASED BY THAT BUYER DURING THE PRECEDING TWELVE MONTH PERIOD. 8. MISCELLANEOUS (a) Entire Agreement. These Conditions of Sale, as may be modified pursuant to Section 9(e) below, set out the entire agreement between Bermingham & Co., seller, and buyer with respect to the transactions contemplated herein and supersede all prior and contemporaneous written, oral or implied understandings, representations and agreements. (b) Assignment. Neither party may assign these Conditions of Sale without the prior written approval of the other party, which consent shall not be unreasonably withheld or delayed. (c) Severability; Waiver. If any part of these Conditions of Sale is found by any court to be invalid, illegal, or unenforceable, that part shall be discounted and the rest of the terms and conditions shall continue to be valid and remain in full force and effect to the fullest extent permitted by law. No failure by any party to exercise, nor any delay in exercising, any right or remedy under these Conditions of Sale shall act as a waiver or release thereof in whole or in part. (d) Law and Jurisdiction. The rights and obligations of the parties with respect to these Conditions of Sale, the conduct of the auction and any matters connected with any of the foregoing shall be governed and interpreted by the laws of the jurisdiction in which the auction is held. By bidding at auction, whether present in person or by agent, by written bid, telephone or other means, the buyer shall be deemed to have submitted, for the benefit of Bermingham & Co., to the exclusive jurisdiction of the courts of that country, state, county, or province, and (if applicable) of the federal courts sitting in such state. (e) Modification. Any and all of the terms and conditions may be waived or modified in the sole discretion of Bermingham & Co.
