1. The following, as amended by any posted notices or oral announcements during the sale, constitutes the entire Conditions of Sale on which property listed in the catalogue shall be offered for sale or sold by Harmer-Schau Auction Galleries, Inc., a Cali California Corporation, hereinafter known as 'HSAG', and any consignor of such property for whom it acts as agent.
2. HSAG, and its officers, directors and shareholders reserve the right to include in any auction sale their own material and may have direct or indirect interests in these or other items. HSAG or its officers, directors and shareholders, may bid for their own accounts at any auction and will pay the standard buyers commission.
3. HSAG reserves 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 catalogue and no lot shall be divided for sale, though they may be combined for sale.
4. HSAG may make advances or guarantees to consignors. CONSIGNORS OR THEIR AGENTS ARE NOT ALLOWED TO BID ON THEIR OWN MATERIAL. Every consignor who registers to bid in the sale agrees to this and all other conditions of sale.
5. If the consignor is indebted to or has a monetary guaranty from us, we may have an interest in an offered lot and the proceeds therefrom other than our commissions and may bid therefore to protect such interest. We are entitled to our standard commissi commission rate when a lot is 'bought-in' to protect our interest.
6. The auctioneer may open the bidding on any lot by placing a bid on behalf of a bidder or HSAG. When identical floor bids are received for a lot, preference is given to the first bid received as determined by the auctioneer. A mail bid will take precedence over an identical floor bid; a floor bidder must bid higher than the highest mail bid to be awarded any lot. We reserve the unfettered right to reject a bid from any bidder. The highest bidder acknowledged by the auctioneer shall be the purchaser. 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. Bids will not be accepted from persons under eighteen (18) years of age without a parent's written notarized consent which acknowledges the conditions of sale herein and agrees to bind the parents on behalf of the bidder. It is unlawful and illegal for bidders to collude, pool, or agree with another bidder to pay less than the fair value for a lot. Bidders in the sale acknowledge that the law provides for substantial penalties in the form of treble damages and attorneys fees for those who violate these provisions.
7. ABSENTEE BIDS: As a service to those wishing to place bids, we may at our discretion accept bids without charge in advance of sale by telephone, or in writing on bidding forms available from us. 'Buy' bids will not be accepted; all bids must state the highest hid price the bidder is willing to pay. Please refer to the increment schedule. As noted below, a 15% premium payable by the purchaser will be added to the bid price. In the event identical bids are submitted, the bid submitted first in time will take precedence. Absentee bids shall be executed in competition with other absentee bids, start bids, and bids from the audience. Successful absentee bids are not acknowledged, but sale results and selling prices for any lot may be obtained by telephone during normal business hours. We assume no responsibility for failure to execute these bids for any reason, as long as such failure does not violate any of the provisions set forth in California Civil Code Section 1822.600 et seq.
8. Our catalogue contains descriptions of property of multiple consignors and may include consignments from HSAG or it's officers, directors or shareholders. All persons seeking to bid, whether in person, through an agent or employee, or by phone or mail, must have a catalogue and register to bid. By submitting a bid, whether in person, by mail, by phone, or through an employee or agent, the bidder acknowledges receipt of the catalogue. The bidder further acknowledges THAT THE BIDDER HAS READ THE CONDITIONS OF SALE, the descriptions of the lots on which he/she has bid, and that he/she agrees to adhere to these conditions of sale. No matter where signed, the agreement shall be deemed to have been made in California. The bidder acknowledges that the invoice describing a lot by number incorporates the catalogue by reference.
9. As used herein the term 'bid price' means the price at which a lot is knocked down to the purchaser. The term 'purchase price' means the aggregate of (a) the bid price (b) a PREMIUM OF FIFTEEN PERCENT (15%) of the bid price payable by the purchaser (c) unless the purchaser is exempt by law from the payment thereof, any California state or local sales tax (or compensating use tax of another state) and (d) postage, packaging and insurance. Unless exemption from such taxes is established to our satisfaction, any purchaser will be required to pay the appropriate tax to us and seek a refund from the State of California.
10. All items are to paid for in U.S. funds by (a) cash (b) cashier's check or (c) personal check with approved credit. All checks must be drawn on a bank in the United States. The auctioneer reserves the right to decline to release lots for which funds have not yet cleared. Title to any lot remains with consignor, any secured party of the Consignor, or consignor's assigns, until the lot is paid for in full. It is the buyer's responsibility and obligation to have the lots fully insured while in his or her possession. Risk of loss is on the buyer upon buyer taking physical possession. On any accounts past due, Harmer-Schau reserves the right to extend credit and impose periodic charges as stated in these conditions of Sale or on the invoice or statement. Buyer agrees to pay reasonable attorneys fees and costs incurred by HSAG to collect on such past due accounts. Lots must be paid for the earlier of receipt of invoice or delivery.
11. By bidding in this sale, bidder personally guarantees payment. If a corporation is the bidder, the actual person bidding on behalf of such corporation and/or all shareholders of the corporation agree to personally guarantee payment as part of their agreeing to bid. Each sale made pursuant to these Conditions of Sale will be deemed to constitute a grant of a security interest by the purchaser to us in, and we may retain as collateral security for the purchaser's obligations to us, any of the purchaser's property in our possession, and we may apply against such obligations all monies held or received by us for the account of, or owing to, the purchaser. 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 will not be deemed made in full until we have collected all amounts due in cash or good funds represented by cleared checks or cashier's checks. If the foregoing conditions or any other applicable conditions herein are not complied with, then in addition to all other remedies legally available to us and the consignor, including but 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 on three days' notice to the purchaser and for the account and risk of the of the purchaser, 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; and, attorneys' fees incurred and incidental damages.
12. Floor bidders and mail bidders who have not established credit with HSAG must furnish satisfactory credit references or deposit at least twenty-five percent (25%) of their total bids for that session(s) or such other amounts as HSAG may require before such bids will be accepted. Deposits submitted will be applied to purchases and any unused portion of such deposit will be promptly refunded upon clearance of the funds.
13. LIMITED RIGHT OF RESCISSION: Each lot is sold as genuine, but when in the opinion of any competent authority mutually acceptable to us and the purchaser( a 'mutually accepted authority') the lot is declared not genuine as represented the purchase price will he refunded in full provided either (l) the lot is received by us within a period of four weeks after the date of the auction, or (2) where an opinion is not expected within four weeks, written notification that the lot has been submitted for an opinion is received by us within such four week period. Unless written notification to the contrary is received, items submitted for an opinion will be considered cleared 120 days from the dare of sale. All expenses incurred shall be borne by the purchaser except when the lots are found by a mutually accepted authority to be incorrectly described, in which case, we will pay the actual cost of the opinion up to 800.00. Proof of the inability of a mutually accepted authority to express a definite opinion is not grounds for the return of a lot. No lot is returnable if it has been marked or in anyway defaced or if it has been immersed in water. Any lot, which is in the buyer's opinion, not as described is returnable (a) within ten days of receipt, and (b) if received by us within four weeks from the date of the auction. All such lots must be returned intact and in the same condition as provided to purchaser. The purchaser is responsible for postage charges to his or her delivery address and back to HSAG. THE FOLLOWING LOTS ARE NOT RETURNABLE: (a) lots from purchasers who actually examined them before the auction; (b) lots offered 'as is'; (c) lots described as having defects or faults; (d) lots containing ten or more stamps; and (e) no illustrated lots may be returned because of centering, margins, or other factors shown in the illustrations. Requests for extension will be denied for lots that have valid certificates of authenticity issued within the last 5 years or thereafter by an accepted expertizing authority (which for U.S. stamps shall include the Philatelic Foundation in New York and the PS.E. in Miami) such lots will be sold as is. In the event of a challenge to the title to any goods purchased, the buyer agrees to (a) give us written notice of such allegation, (b) within 10 days after such written notice return such lot to us in the same condition as at the time of sale and (c) establish such allegation to our satisfaction. If such conditions are met the sale of such lot will be rescinded and, unless we have already paid to the consignor monies owed him in connection with the sale, the original purchase price will be refunded. If, prior to receiving such notice from the original purchaser alleging such defect, we have paid the consignor monies owed him. In connection with the sale, we shall pay the original purchaser the amount of our commissions, any other sale proceeds to which we are entitled, and applicable taxes received from the purchaser on the sale and make demand on the consignor to pay the balance of the original purchase price to the original purchaser. Should the consignor fail to pay such amount promptly, we shall disclose the identity of the consignor and assign to the original purchaser our rights against the consignor with respect to the lot the sale of which is sought to be rescinded. UPON SUCH DISCLOSURE AND ASSIGNMENT, ANY LIABILITY OF HSAG, INC. AS CONSIGNOR'S AGENT WITH RESPECT TO SAID LOT SHALL AUTOMATICALLY TERMINATE. The foregoing limited right of rescission is available to the original purchaser only and may not be assigned to or relied upon by any subsequent transferee of the goods sold. The purchaser hereby accepts the benefit of any representations or warranties made by the consignor for the purchaser's benefit with respect to consigned goods sold hereunder. Nothing in this paragraph shall be construed as an admission by us of any representation of fact, express or implied, or of any obligation or responsibility with respect to any lot. THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AGAINST HSAG IN THE EVENT OF THE PURCHASER'S DISSATISFACTION WITH LOTS SOLD HEREUNDER, FOR ANY REASON WHATSOEVER, IS THE LIMITED RIGHT OF RESCISSION DESCRIBED IN THIS PARAGRAPH. THE PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY COMPENSATORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
14. If the auction invoice is not paid in full when due per invoice conditions, the unpaid balance will accrue a finance charge of 1 1/2% per month. If the matter is referred to an attorney or collection agent for collection, bidder agrees to pay all reasonable attorneys fees, court costs and other collection costs incurred by HSAG, or its assigns, to collect past due invoices. Service of process by certified or registered mail, return receipt requested, shall be sufficient to confer full 'in personam' jurisdiction over bidder and/or any firm that the bidder represents. HSAG reserves the right to assign its interest to any third party.
15. HSAG reserves the right to postpone the auction sale or any session thereof for a reasonable period of time for any reason whatsoever, and no bidder or prospective bidder shall have any claim as a result thereof, including a claim for consequential damages. If we are prevented by fire, theft or other reason beyond our control from delivering any property to the purchaser, 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.
16. ALL STATEMENTS CONTAINED IN THE CATALOGUE OR IN ANY BILL OF SALE, INVOICE OR ELSEWHERE AS TO SOURCE, QUALITY, RARITY, PROVENANCE, IMPORTANCE, ORIGIN OR PHYSICAL CONDITION ARE QUALIFIED STATEMENTS OF OPINION AND NOT REPRESENTATIONS OR WARRANTIES BY HSAG. No employee of HSAG is authorized to make on our behalf or that of the consignor any representation or warranty, oral or written, with respect to any property.
17. These Conditions of Sale and the parties' rights and obligations hereunder are governed by California law. By bidding at an auction, whether in person or by agent, or by telephone or other means, the buyer or bidder agrees to be bound by these Conditions of Sale. Any controversy or claim arising out of or relating to these Conditions Of Sale, or the breach hereof, brought by or against us (but not including claims brought against the consignor by the purchaser of lots sold hereunder) shall be arbitrated. Upon the other party's refusal to arbitrate either party may compel arbitration pursuant to the following procedures:
(1) Either party shall send the other written notice identifying the matter in dispute and invoking the procedures of this paragraph. Within thirty (30) days after such written notice is given, one or more principals of each party shall meet at a mutually agreeable location in Petaluma, California, for the purpose of determining whether they can resolve the dispute themselves by written agreement and if not, whether they can agree upon a third-party impartial arbitrator (the 'Arbitrator') to whom to submit the matter in dispute for final and binding arbitration pursuant to Title 9 of the California Code of Civil Procedure (section 1280, et seq.) (the 'California Arbitration Act');
(2) If the parties fail to resolve the dispute by written agreement or to agree on the Arbitrator within said thirty (30) day period, either party shall make written application to the American Intermediation Service ('AIS'), 114 Sansome Street, Suite 1130, San Francisco, California 94104, for the appointment of an Arbitrator to resolve the dispute by arbitration pursuant to the California Arbitration Act. At the request of AIS, the parties shall meet with AIS at its offices within (10) days of such request to discuss the dispute and the qualifications and experience which each party respectively believes the Arbitrator should have; provided, however, the selection of the Arbitrator shall be the exclusive decision of AIS and shall be made within thirty (30) days of the written application to AIS;
(3) Within thirty (30) days of the selection of the Arbitrator pursuant to clauses (l) and (2) above, the parties shall meet in Petaluma, California with such Arbitrator at a place and time designated by the Arbitrator after consultation with the parties and present their respective positions in the dispute. Each party shall have no longer than eight (8) hours to present its position, the entire proceedings before the Arbitrator shall be limited to three (3) consecutive days and the award shall be made in writing no more than thirty (30) days following the end of the proceedings. Such award shall be a final and binding determination of the dispute and shall be fully enforceable as an arbitration award in accordance with the California Arbitration Act. Each party shall bear its own attorney's fees and expenses in connection with such proceedings and shall bear one-half of the Arbitrator's fees and expenses.
18. Rights granted to bidders and purchasers under these Conditions of Sale are personal and may not be assigned or transferred to any other person or entity, whether by operation of law or otherwise. Any attempt to assign or transfer any such rights shall be absolutely void and unenforceable. No third party may rely on any benefit or right conferred by these conditions and Conditions of Sale and conditions of warranty on any bidder or purchaser. 'Purchaser' shall mean the original purchaser of the property from HSAG and not any subsequent owner or other person who may have or acquire an interest therein. If purchaser is an agent, the agency must be disclosed in writing to HSAG at the time of sale, otherwise the benefits of the warranty shall be limited to the agent and not transferable to the undisclosed principal. If any provision or term contained in these Conditions of Sale is for any reason invalid or unenforceable such invalidity shall not affect any other provision contained herein, which shall remain valid and enforceable.