Conditions of Sale
ANYONE EITHER REGISTERING TO BID OR PLACING A BID (“BIDDER”) ACCEPTS THESE CONDITIONS OF SALE AND ENTERS INTO A LEGALLY, BINDING, ENFORCEABLE AGREEMENT WITH BERNERS AUCTION, LLC (“BERNERS”) TOGETHER WITH BIDDER, THE “PARTIES”).
This Agreement contains important provisions that control rights and liabilities, and specifically has provisions governing how disputes are handled as well as LIMITATIONS OF LIABILITY that can be imposed upon BERNERS Auction, WAIVER OF JURY and ARBITRATION PROVISIONS. This acknowledgement is a material term of these Conditions of Sale and of the consideration under which BERNERS Auction agrees to these terms. PLEASE READ CAREFULLY.
The following terms and conditions (“Conditions of Sale”) constitute the sole terms and conditions under which BERNERS Auction will offer for sale and sell the property on its website, and/or described in the catalog of items for auction (the “Catalog”) or offered for sale in the Live Auctions. These Conditions of Sale constitute a binding agreement between the Parties with respect to the auction in which Bidder participates (the “Auction”). By bidding at the Auction, whether in person, through an agent or representative, by telephone, facsimile, online, absentee bid, or by any other form of bid or by any other means, Bidder acknowledges the thorough reading and understanding of all of these Conditions of Sale, all descriptions of items, and all matters incorporated herein by reference, and agrees to be fully bound thereby.
Section 1
The Parties1.1 BERNERS Auction and Auction
This Auction is presented by BERNERS Auction, a d/b/a/ of BERNERS Auction, LLC, of Deland, Florida as identified with the applicable licensing information on the title page on www.bernersauction.com Internet site. The Auction is conducted under these Conditions of Sale. Announcements and corrections from the podium at live auctions and those made through the Conditions of Sale appearing on the Internet at BernersAuction.com supersede those in any printed material.
1.2 Bidder
Bidder shall mean the original Bidder on the property offered for sale by BERNERS Auction and not any subsequent owner or other person who may acquire or have acquired an interest therein. If Bidder is an agent, the agency must be disclosed in writing to BERNERS Auction prior to the time of sale, otherwise the benefits of the warranty shall be limited to the agent and not transferable to the undisclosed principal.
The rights granted to Bidder 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 without the express written assent of BERNERS Auction. Bidder may not transfer, assign, or otherwise convey these Conditions of Sale or any of the rights herein, and such purported transfer, assignment, or conveyance shall be null and void. No third party may rely on any benefit or right conferred on any Bidder by these Conditions of Sale, and no third party is intended as a beneficiary of these Conditions of Sale.
Bids will not be accepted from minor persons under eighteen (18) years of age without a parent or legal guardian’s written consent containing an acknowledgment of the Conditions of Sale herein and indicating their agreement to be bound thereby on behalf of the Bidder.
All Bidders must meet BERNERS Auction qualifications to bid. Any Bidder who is not a client in good standing of BERNERS Auction may be disqualified at BERNERS Auctions sole option and will not be awarded lots. Such determination may be made by BERNERS Auction in its sole and unlimited discretion, at any time prior to, during, or even after the close of the Auction. BERNERS Auction reserves the right to exclude any person from the Auction.
If an entity places a bid, then the person executing the bid on behalf of the entity agrees to personally guarantee payment for any successful bid and agrees to be bound by these Conditions of Sale in addition to company for whom the Bidder is acting.
By accepting the Conditions of Sale, Bidder personally and unconditionally guarantees payment.
Section 2
Bidding Privileges
2.1 In order to place bids, Bidders who have not established an account with BERNERS Auction must either furnish satisfactory credit information or supply additional information if requested, at least 24 hours in advance of the Auction. Bidders who are not members of BERNERS Auction should pre-register before the close of the Auction to allow adequate time to confirm credit. Privileges will be granted at the sole discretion of BERNERS Auction. Additionally, Bidders who have not previously established credit or who wish to bid in excess of their established credit history may be required to provide a cash deposit prior to Berners Auction’s acceptance of a bid. Check writing privileges and immediate delivery of merchandise may also be determined by pre-approval of credit based on a combination of criteria: BERNERS Auction history, related industry references, letter of credit from a bank verification, a credit bureau report and/or a personal guarantee for a corporate or partnership entity in advance.
2.2 Bidder providing any false or misleading information provided in connection with the registration shall be a material breach of the Conditions of Sale and in addition to any other remedies at law shall excuse BERNERS Auction from performance under these Conditions of Sale, including the right to any refund.
2.2 Bidding privileges may be revoked without notice, for any reason, at the sole discretion of BERNERS Auction.
2.3 Bidders may request in advance financing from BERNERS Auction. Financing is granted at the discretion of BERNERS Auction.
2.4 All sales must be paid in full at the close of the auction unless otherwise agreed through terms established with BERNERS Auction.
Section 3
Buyer’s Premium
3.1 The Bidder acknowledges and agrees that a 25% buyer’s premium will be added to the hammer price on all individual lots sold in timed and live Auctions For payment other than by cash, delivery will not be made unless and until full payment has been received by BERNERS Auction, i.e., check or wired funds have fully cleared. Unless otherwise agreed in writing, payment in full is due within thirty (30) calendar days of the Auction or within thirty (30) calendar days of the invoice date, whichever is earlier. Bidder’s failure to pay any payment in full when due required shall constitute a material breach, and in addition to other damages available under contract or law, at BERNERS Auction’s election, BERNERS Auction may cancel the sale and require full premium still be due along with interest at 1.5% per month from the date of breach, or at the maximum legally allowable rate.
Section 4
Bidding
4.1 Each Bidder’s determination of its bid should be based upon its own examination of the item(s) and independent investigation, rather than the any reliance as to what is represented in the description, online or elsewhere. Bidder affirms that it regards any statements made by BERNERS Auction concerning the item as solely opinion and that Bidder is making its own inspection and independent evaluation of the goods, and is not relying upon any description or statements by BERNERS Auction (including as to quality, authenticity, provenance, ownership, liens existing, on goods legality, or value) in making its determination to bid on or purchase an item. In any purchase or sale, the value of the item(s) is determined by the price. THE BIDDER HEREBY ASSUMES ALL RISKS CONCERNING ANY AND ALL PURCHASES TO THE FULLEST EXTENT UNDER APPLICABLE LAW.
4.2 BERNERS AUCTION IS NOT RESPONSIBLE FOR ERRORS IN BIDDING. A Bidder should make certain to bid on the correct lot and that the bid is the maximum (plus the Buyer’s Premium) that the Bidder is willing and able to pay. Since other Bidders (by mail, facsimile, online, phone, and in person) will be present, and since a re-offering could damage the momentum of the sale, once the hammer has fallen and BERNERS Auction has announced the winning Bidder, such Bidder is unconditionally bound to pay for the lot, even if the Bidder has made a mistake.
4.3 All prospective Bidders who examine lots in person prior to the sale shall personally assume all responsibility for any damage they cause in so doing. BERNERS Auction shall have sole discretion in determining the value of the damage caused, which shall be promptly paid by the prospective Bidder.
4.4 Title to any lot remains with Consignor, any secured party of the Consignor, or assignee of Consignor, as the case may be, until the lot is paid for in full by Bidder and Bidder has fully satisfied any outstanding financial obligations to BERNERS Auction (including as it concerns aby other lots). BERNERS Auction reserves the right to require payment in full before delivering any lot to the successful Bidder.
4.5 It is the Bidder’s responsibility and obligation to have the lots fully insured while in their possession. Bidder assumes any and all risk of loss upon the earlier of shipment to Bidder or in Bidder’s possession.
4.6 Bidder grants to BERNERS Auction or its assigns the right to offset any sums due, or found to be due by BERNERS Auction, and to make such offset from any past, subsequent or future consignment, or items acquired by Bidder in possession or control of BERNERS Auction or from any sums due to Bidder by BERNERS Auction. Bidder further grants BERNERS Auction a lien consisting of a senior security interest (or purchase money security interest to the extent applicable) in such sums or items to the fullest extent applicable, authorizes BERNERS Auction to file documents concerning the interest, and Bidder agrees to execute any further documents as may be reasonably necessary to grant BERNERS Auction such security interest. Bidder agrees that BERNERS Auction and its assigns shall be a secured party with respect to items bought by Bidder and in the possession of BERNERS Auction, to the extent of the maximum indebtedness, plus all accrued fees and expenses, until the indebtedness is paid.
4.7 By bidding in this sale, Bidder personally and unconditionally guarantees payment. The authorized representative of any corporate Bidder who is present at the sale shall provide BERNERS Auction or its agent, prior to the commencement of the bidding (or at the time of registration), with a statement signed by a principal, director or officer that they he or she personally and unconditionally guarantees any payment due BERNERS Auction.
4.8 BERNERS Auction may at its sole and absolute discretion, make loans or advances to Consignors and/or prospective Bidders.
Section 5
Bidding Options
5.1 Non-Internet bids (including but not limited to in-person, facsimile, phone and mail bids) are treated similarly to floor bids in that they must be on-increment. Any in-person, facsimile, phone, or mail bids that do not conform to a full increment will be rounded up or down to the nearest full increment and this revised amount will be considered Bidder’s high bid.
5.2 When identical bids are submitted, preference is given to the first received. To ensure the greatest accuracy, written bids should be entered on the standard printed bid sheet and be received at BERNERS Auction’s place of business at least twenty-four (24) hours before the Auction starts. BERNERS Auction is not responsible for executing mail bids or facsimile bids received on or after the day the first lot is sold, nor Internet bids submitted after the published closing time; nor is BERNERS Auction responsible for proper execution of bids submitted by telephone, mail, facsimile, e-mail, Internet, or in person once the Auction begins.
5.3 In all Auctions, bids on an item must raise the current high bid by at least 10%, or as specified on a per-Auction basis. Bids will be accepted in whole dollar amounts only. No “buy” or “unlimited” bids will be accepted. In a live sale, bids on an item can change at the discretion of BERNERS Auction.
5.4 BERNERS Auction reserves the right to accept or decline any bid. Bids must be for an entire lot and each lot constitutes a separate sale. All bids are per lot unless otherwise announced. Live auction lots will be sold in their numbered sequence unless BERNERS Auction directs otherwise. It is unlawful and illegal for Bidders to collude, pool, or agree with another Bidder to pay less than the fair value for lot(s). For live auctions, BERNERS Auction will have final discretion in the event that any dispute should arise between Bidders. BERNERS Auction will determine the successful Bidder, cancel the sale, or re-offer and resell the lot or lots in dispute. BERNERS Auction will have final discretion to resolve any disputes arising after the sale and in online auctions. If any dispute arises, BERNERS Auction’s sale record is conclusive.
Section 6
Payment
6.1 Subject to fulfillment of all of the Conditions of Sale set forth herein, upon the sooner of (1) the passing of title to the offered lot pursuant to these Conditions of Sale, or (2) possession of the offered lot by the Bidder, Bidder thereupon (a) assumes full risk and responsibility (including without limitation, liability for or damage to frames or glass covering prints, paintings, photos, or other works), and (b) will immediately pay the full purchase price or such part as BERNERS Auction may require. In addition to other remedies available to BERNERS Auction by law, BERNERS Auction reserves the right to impose from the date of sale a late charge of 45.00 or 2% of the total purchase price (whichever is greater) will be assessed per month if payment is not made in accordance with the conditions set forth herein. All property must be removed from BERNERS Auction’s premises by the Bidder at his/her expense not later than thirty (30) business days following its sale and, if it is not so removed, BERNERS Auction may send the purchased property to a public warehouse for the account, at the risk and expense of the Bidder.
6.2 Payment is due upon closing of the Auction session, or upon presentment of an invoice. BERNERS Auction reserves the right to void an invoice if payment in full is not received within thirty (30) calendar days of the Auction or within thirty (30) calendar days of the invoice date. In cases of nonpayment, BERNERS Auctions election to void a sale does not relieve the Bidder from their obligation to pay BERNERS Auction its fees (seller’s and Buyer’s Premium) on the lot and any other damages pertaining to the lot.
6.3 All sales for total invoices greater than $2,500 are strictly for cash in United States dollars (including U.S. currency, bank wire, cashier checks, eChecks, and bank money orders), and are subject to all reporting requirements.
6.4 All deliveries are subject to good funds; funds being received in BERNERS Auction’s account before delivery of the Purchases; and all payments are subject to a clearing period. BERNERS Auction reserves the right to determine if a check constitutes “good funds”: checks drawn on a U.S. bank are subject to a 7 (7) calendar day hold, and ten (10) business days when drawn on an international bank. Clients with pre-arranged credit status may receive immediate credit for payments via e-Check, personal or corporate checks.
6.5 In the event that a Bidder’s payment is dishonored upon presentment(s), Bidder shall pay the maximum statutory processing fee set by applicable state law. If Bidder attempts to pay via check and the financial institution denies the transfer from Bidder’s bank account, or the payment cannot be completed using the selected funding source, Bidder agrees to complete payment.
6.7 If BERNERS Auction refers any unpaid invoice to an attorney for collection, the Bidder agrees to pay and shall be liable for BERNERS Auction’s attorney’s fees, court costs, and other collection costs incurred by BERNERS Auction in addition to the invoice amount and interest the greater of 2% per month or at the maximum legally allowable rate from the date of invoice to collection. If BERNERS Auction assigns collection to its house counsel, such attorney’s time expended on the matter shall be compensated at a rate comparable to the hourly rate of independent attorneys.
6.8 BERNERS Auction shall have a lien against the merchandise purchased by the Bidder (as well as to the extent it is a consignor any other monies owed or due to Bidder) to secure payment of the Auction invoice. BERNERS Auction is further granted a lien and the right to retain possession of any other property of the Bidder then held by BERNERS Auction or its affiliates to secure payment of any Auction invoice or any other amounts due BERNERS Auction or affiliates from the Bidder. With respect to these lien rights, BERNERS Auction shall have all the rights of a secured creditor, including but not limited to the right of sale. In addition, with respect to payment of the Auction invoice(s), the Bidder waives any and all rights of offset he might otherwise have against BERNERS Auction and the consignor of the merchandise included on the invoice (the Consignor”). If a Bidder owes BERNERS Auction or its affiliates on any account, BERNERS Auction and its affiliates shall have the right to offset such unpaid account by any credit balance due Bidder, and it may secure by possessory lien any unpaid amount by any of the Bidder’s property in their possession.
6.9 All checks, cashier's checks, bank checks, or money orders are payable to BERNERS Auction, LLC. BERNERS Auction clients have the option to pay by VISA, Mastercard, or American Express. All Paypal and credit card payments must be made using the "Pay Now" link sent in the invoice email. Is there a 3rd party processor used? If so I need ot include the detail. Example: BlueSnap, Inc, a third-party service provider contracted by BERNERS Auction for processing online payments, charges a nonrefundable service fee of 3%, which will be added to your final invoice should you pay by credit/debit card.
Section 7
Sales Tax
BERNERS Auction is a remote seller and we are required to collect Sales/Use Tax from our bidders. Each state has different requirements to meet nexus. We will be required to collect and remit sales tax on your behalf.
If we have not achieved nexus in a particular state it is still your responsibility to pay sales tax on your purchases.
The sales tax rate is determined by the State, Country, and City to which purchases are shipped. If you decide to pick up your purchases at our Deland location you will not be required to pay sales tax. The State of Florida does not have a general sales and use tax. All purchases picked up at our Deland location will be taxed at the current rate of 6.5%.
If you have a resale number please email ??????@bernersauctions.com or sent a picture of your state resale certificate and you will be exempt from paying sales tax.
Please view the states we are currently collecting for here.
Section 8
Delivery; Shipping; and Handling Charges
Bidder is liable for shipping and handling and providing accurate information as to shipping or delivery locations and arranging for such. BERNERS Auction is unable to combine purchases from other auctions or affiliates into one package for shipping purposes. Lots won will be shipped in a commercially reasonable time after payment in good funds for the merchandise has been received. Shipping and delivery arrangements are at the discretion of the Bidder. Unless previously arranged, UPS picks ups the lots and transports them to the packing location on Thursday and Friday immediately following the Auction.UPS will contact the buyer to confirm shipping requirements, shipping address and collect the shipping fees. BERNERS Auction is not responsible for the shipping or delivery of purchased items.
Successful international Bidders shall provide written shipping instructions, including specified Customs declarations, to BERNERS Auction for any lots to be delivered outside of the United States. NOTE: Declaration value shall be the item’(s) hammer price and BERNERS Auction shall use the correct harmonized code for the lot. Domestic Bidders on lots designated for third-party shipment must designate the common carrier, accept risk of loss, and prepay shipping costs.
Section 9
Title
Title shall not pass to the successful Bidder until all invoices of Bidder (including those pertaining to the item(s) at issue) and amounts owed to BERNERS Auction are paid in full. It is the responsibility of the Bidder to provide adequate insurance coverage for the items once they have been delivered to a common carrier or third-party shipper.
Section 10
Rights Reserved
BERNERS Auction reserves the right, at any time before, during or after an auction has ended to: withdraw any lot before or at the time of the Auction, cancel any bid, and/or to postpone the Auction of all or any lots or parts thereof, for any reason. BERNERS Auction shall not be liable to any Bidder in the event of such withdrawal, cancellation, or postponement under any circumstances. BERNERS Auction reserves the right to refuse to accept bids from anyone at any time.
Section 11`
Conducting the Auction
11.1 BERNERS Auction reserves the right to postpone the Auction 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 consequential damages.
11.2 BERNERS Auction: BERNERS Auction shall determine opening bids and bidding increments. BERNERS Auction has the right in its absolute discretion to reject any bid in the event of dispute between Bidders or if BERNERS Auction has doubt as to the validity of any bid, to advance the bidding at its absolute discretion and to determine the successful Bidder in the event of a dispute between Bidders, to continue the bidding or to reoffer and resell the lot in question. In the event of a dispute after the sale, BERNERS Auction record of final sale shall be conclusive. BERNERS Auction also may reject any bid if BERNERS Auction decides either that any bid is below the reserve of the lot or article or that an advance is insufficient. Unless otherwise announced by BERNERS Auction at the time of sale, no lots may be divided for the purpose of sale.
11.3 Reserves
Lots may be subject to a reserve which is the confidential minimum price below which the lot will not be sold. Consignors may not bid on their own lots or property. BERNERS Auction may, from time to time, bid on items that it does not own. BERNERS Auction may execute bids consecutively or otherwise up to one bid increment below the reserve.
11.4 Off-Site Bidding
Bidding by telephone, facsimile, online, or absentee bidding (advance written bids submitted by mail) are offered solely as a convenience and permitted subject to advance arrangements, availability, and BERNERS Auction’s approval which shall be exercised at BERNERS Auction’s sole discretion. Neither BERNERS Auction nor its agents or employees shall be held liable for the failure to execute bids or for errors relating to any transmission or execution thereof. In order to be considered for off-site bidding in any manner, Bidders must comply with all of these Conditions of Sale and the terms contained on the Registration Form.
11.5 Estimate Prices:
In addition to descriptive information, each item/lot sometimes includes a price range which reflects opinion(s) as to the price expected at auction (the “Estimate Prices”). In other instances, Estimate Prices can be obtained by calling BERNERS Auction at (386) 738-8848. The Estimate Prices are based upon various factors including prices recently paid at auction for comparable property, condition, rarity, quality, history and provenance. Estimate Prices are prepared well in advance of the sale and subject to revision. Estimates do not include the Buyer’s Premium or sales tax (see under separate heading).
11.6 Owned or Guaranteed Property:
BERNERS Auction generally offers property consigned by others for sale at public auction; in very limited occasion, lots are offered that are the property of BERNERS Auction.
11.7 Before the Auction:
Bidder may attend pre-sale viewing for all of BERNERS Auction’s auctions at no charge. All property to be auctioned is usually on view for several days prior to the sale. Bidder is encouraged to examine lots thoroughly. Bidder may also request condition reports (see below). BERNERS Auction’s staff are available at viewings and by appointment.
11.8 Maximum Bids In All Auctions:
To maximize Bidder’s chance of winning, BERNERS Auction strongly encourages the use of maximum bids. BERNERS Auction will then bid for Bidder until the lot reaches Bidder’s specified maximum. Maximum bids are strictly confidential. Placing arbitrary, non-incremental bids on lots with prior maximum bids may result in these lots being sold for less than 10% above the under Bidder’s bid.
11.9 Successful Bids:
The fall of BERNERS Auction’s hammer indicates the final bid. BERNERS Auction will record the paddle number of the Bidder. If Bidder’s salesroom or absentee bid is successful, Bidder will be notified after the sale by mailed or emailed invoice.
11.10 Unsold Lots:
If a lot does not reach the reserve, it is bought-in. In other words, it remains unsold and is returned to the Consignor. BERNERS Auction has the right to sell certain unsold items after the close of the Auction. Such lots shall be considered sold during the Auction and all these Terms and Conditions shall apply to such sales including but not limited to the Buyer’s Premium, return rights, and disclaimers.
11.11 Bidding in Timed (ONLINE)Auction:
Bidder may open, monitor, and/or raise bids at any time before the close of a lot through www.hibids/berners.com. BERNERS Auction offers a callback service the day of the Auction, but Bidder is responsible for supplying a correct telephone number(s) where Bidder can be reached until the Auction closes. Bidder must request this service in writing. BERNERS Auction will make reasonable efforts to ensure that Bidders who request a callback are contacted if outbid; however, BERNERS Auction` does not guarantee this service and it is merely a courtesy and not an enforceable right. The auctioneer may also execute a bid on behalf of the consignor to protect the reserve, either by entering a bid in response to salesroom, telephone or absentee bids. Under no circumstances will the auctioneer place any bid on behalf of the consignor above the reserve. The auctioneer will not specifically identify bids placed on behalf of the consignor to protect the reserve.
To ensure proper registration, those Bidders intending to bid via the Internet must visit www.bernersauctions.com and register with HiBid or LiveAuctioneers accordingly prior to the actual auction. Winning bidders will be notified by BERNERS Auction. BERNERS Auction is not responsible or liable for any problems, delays, or any other issues or problems resulting out of use of the Internet generally or specifically, including but not limited to transmission, execution or processing of bids.
Any Bidder may bid on any lot prior to 12:00 noon pm EST/EDT of the day of the online auction. At that time, an extended bidding period goes into effect. Once the Auction begins, only registered bidders may participate. During the extended bidding period, a lot will remain open only to those who bid on that lot prior to the start of the auction and to those who are registered to bid in that auction. Once the lot has been closed, no additional bids are taken. BERNERS Auction reserves the right to close the Auction at any time at its sole discretion.
11.12 Bidding - Internet Live Auction:
Bidder may open, monitor, and/or raise bids at any time before the close of a lot through www.hibid.com. BERNERS Auction offers a callback service the day of the Auction, but Bidder is responsible for supplying a correct telephone number(s) where Bidder can be reached until the Auction closes. Bidder must request this service in writing. BERNERS Auction will make reasonable efforts to ensure that Bidders who request a callback are contacted if outbid; however, BERNERS Auction does not guarantee this service and it is merely a courtesy and not an enforceable right.
To ensure proper registration, those Bidders intending to bid via the Internet must visit www.bernersauctions.com and register accordingly at least one full day prior to the actual auction. Winning bidders will be notified by BERNERS Auction. BERNERS Auction is not responsible or liable for any problems, delays, or any other issues or problems resulting out of use of the Internet generally or specifically, including but not limited to transmission, execution or processing of bids.
During live internet or live auction, property is auctioned in consecutive numerical order, as it appears in the online catalog. The auctioneer will accept bids from those present in the salesroom or absentee bidders participating by telephone, internet or by written bid left with BERNERS Auction in advance of the auction. The auctioneer may also execute a bid or bids (successively or otherwise) on behalf of the consignor to protect the reserve, either by entering a bid in response to salesroom, telephone or absentee bids. Under no circumstances will the auctioneer place any bid on behalf of the consignor above the reserve. The auctioneer will not specifically identify bids placed on behalf of the consignor to protect the reserve. All auctions for lots are with reserve unless specifically stated otherwise.
During live Auctions, internet bids can be placed in real time through one or more of the following Third Party services: www.liveauctioneers.com and www.hibids.com . BERNERS Auction is not responsible or liable for any problems, delays, or any other issues or problems resulting out of use of the Internet generally or specifically, including but not limited to transmission, execution or processing of bids. BERNERS Auction treats any third-party site bids as floor or telephone bids. Floor bids and telephone bids are always considered first over third party sites bids, and floor bids are considered earlier than telephone bids. All BERNERS Auction lots purchased through the third-party sites carry an additional Buyer’s Premium.
11.13 Miscellaneous:
Agreements between Bidders and Consignors to effectuate a non-sale of an item at Auction, inhibit bidding on a consigned item to enter into a private sale agreement for said item, or to utilize BERNERS Auction to obtain sales for non-selling consigned items subsequent to the Auction, are strictly prohibited. If a subsequent sale of a previously consigned item occurs in violation of this provision, BERNERS Auction reserves the right to charge Bidder the applicable Buyer’s Premium and Consignor a Seller’s Commission as determined for each auction venue and by the terms of the seller’s agreement.
Acceptance of these Terms and Conditions qualifies Bidder as a client who has consented to be contacted by BERNERS Auction in the future. In conformity with ”do-not-call” regulations promulgated by the Federal or State regulatory agencies, participation by the Bidder is affirmative consent to being contacted at the phone number shown in his application and this consent shall remain in effect until it is revoked in writing. BERNERS Auction may from time to time contact Bidder concerning sale, purchase, and auction opportunities available.
11.14 Rules of Construction: BERNERS Auction presents properties in a number of collectible fields, and as such, specific venues have promulgated supplemental Terms and Conditions. Nothing herein shall be construed to waive the general Conditions of Sale by these additional rules and shall be construed to give force and effect to the rules in their entirety.
Section 12
BERNERS Auction’s Remedies
Failure of the Bidder to comply with any of these Conditions of Sale or the terms of the Registration Form is an event of material breach or default. In such event, BERNERS Auction may, in addition to any other available remedies specifically including the right to hold the defaulting Bidder liable for the Purchase Price or to charge and collect from the defaulting Bidder’s credit or debit accounts as provided for elsewhere herein: (a) cancel the sale, retaining any payment made by the Bidder as damages (the Bidder understands and acknowledges that BERNERS Auction will be substantially damaged should such default occur, and that damages under sub-part (a) are necessary to compensate BERNERS Auction for such damages); (b) resell the property without reserve at public auction or privately; (c) charge the Bidder interest on the Purchase Price at the rate of one and one-half percent (1.5%) per month or the highest allowable interest rate; (d) take any other action that BERNERS Auction, in its sole discretion, deems necessary or appropriate to preserve and protect BERNERS Auction’s rights and remedies. Should BERNERS Auction resell the property, the original defaulting Bidder shall be liable for the payment of any deficiency in the purchase price and all costs and expenses associated there with, including but not limited to warehousing, sales-related expenses, reasonable attorney fees and court costs, commissions, incidental damages and any other charges due hereunder which were not collected or collectable. In the event that such Bidder is the successful Bidder on more than one lot and pays less than the purchase price for the total lots purchased, BERNERS Auction shall apply the payment received to such lot or lots that BERNERS Auction, in its sole discretion, deems appropriate. If BERNERS Auction does not exercise such discretion, the lots to which the payment shall be applied will be in descending order from the highest purchase price to the lowest. Any Bidder failing to comply with these Conditions of Sale shall be deemed to have granted BERNERS Auction a security interest in, and BERNERS Auction may retain as collateral such security for such Bidder’s obligations to BERNERS Auction, any Bidder’s property in BERNERS Auction’s possession or to which title has not yet passed to Bidder. BERNERS Auction shall have the benefit of all rights of a secured party under the Uniform Commercial Code (U.C.C.) as adopted by the State of Florida.
Section 13
Warranties
13.1 BERNERS Auction does not provide any warranties to Bidders, whether expressed or implied, beyond those expressly provided in these Conditions of Sale. All property and lots are sold ”as is” and “where is”. By way of illustration rather than limitation, neither BERNERS Auction nor the Consignor makes any representation or warranty, expressed or implied, as to merchantability or fitness for intended use, condition of the property (including any condition report), correctness of description, origin, measurement, quality, rarity, importance, exhibition, relevance, attribution, source, provenance, date, authorship, condition, culture, genuineness, value, or period of the property. Additionally, neither BERNERS Auction nor the Consignor makes any representation or warranty, expressed or implied, as to whether the Bidder acquires rights in copyright, trademark, or other intellectual property (including exhibition or reproduction rights) related to the item, or whether the property is subject to any limitations or other rights. BERNERS Auction does not make any representation or warranty as to title.
13.2 All descriptions, photographs, illustrations, and terminology including but not limited to words describing condition (including any condition reports requested by Bidder, see also Terminology), authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, exhibition, and relevance, used in the description and/or catalog, bill of sale, invoice, or anywhere else, represent a good faith effort made by BERNERS Auction to fairly represent the lots and property offered for sale as to origin, date, condition, and other information contained therein; they are statements of opinion only. They are not representations or warranties and Bidder agrees and acknowledges that he or she shall not rely on them in determining whether or not to bid or for what price. Price estimates (which are determined well in advance of the Auction and are therefore subject to revision) and condition reports are provided solely as a convenience to Bidders and are not intended nor shall they be relied on by Bidders as statements, representations or warranties of actual value or predictions of final bid prices.
13.3 Bidders are accorded the opportunity to inspect the lots and to otherwise satisfy themselves as to the nature and sufficiency of each lot prior to bidding, and BERNERS Auction urges Bidders to avail themselves accordingly.
13.4 All lots sold by BERNERS Auction are accompanied by an Auction Certificate (“AC”). On any lot presented with an AC issued by BERNERS Auction, the certification is only as to its attribution to the person or entity described or to the lot’s usage and only as explicitly stated therein (the “AC”), to the exclusion of any other warranties, express or implied, including but not limited to those pursuant to the Uniform Commercial Code. The AC inures only to the original Bidder (as shown in BERNERS Auction records). Bidder may not transfer, assign, or otherwise convey the AC and such purported transfer, assignment, or conveyance shall be null and void.
Section 14
BERNERS Auction complies with all Federal and State rules and regulations relating to the purchasing, registration and shipping of firearms. A Bidder is required to provide appropriate documents and the payment of associated fees, if any. Bidder is responsible for providing a shipping address that is suitable for the receipt of a firearm.
Section 15
Unauthorized Statements
Under no circumstances is any employee, agent or representative of BERNERS Auction authorized by BERNERS Auction to modify, amend, waive or contradict any of these Conditions of Sale, any term or condition set forth on a registration form, any warranty or limitation or exclusion of warranty, any term or condition in either the Registration Form or these Terms and Conditions regarding payment requirements, including but not limited to due date, manner of payment, and what constitutes payment in full, or any other term or condition contained in any documents issued by BERNERS Auction unless such modification, amendment, waiver or contradiction is contained in a writing signed by all parties. Any statements, oral or written, made by employees, agents or representatives of BERNERS Auction to Bidder, including statements regarding specific lots, even if such employee, agent or representative represents that such statement is authorized, unless reduced to a writing signed Bidder and by an authorized officer of BERNERS Auction by all parties, are statements of personal opinion only and are not binding on BERNERS Auction, and under no circumstances shall be relied upon by Bidder as a statement, representation or warranty of BERNERS Auction.
Section 16
Bidder’s Remedies
16.1 Except as stated expressly herein, Bidder’s sole and exclusive remedy related to or pertaining to items it bids upon, views, or purchases from BERNERS Auction, and any claims by Bidder related to authenticity, ownership, condition, title or value, shall be against Consignor only.
16.2 This section sets forth the sole and exclusive remedies of Bidder as against BERNERS Auction (inclusive of its affiliates, officers, managers, employees or agents), or in any way arising out of, related to, or in connection with these Conditions of Sale, , and is expressly in lieu of any other rights or remedies which might be available to Bidder by law. Time is of the essence with respect to these procedures.
16.3 Title to Items
The Bidder hereby accepts the benefit of the Consignor’s warranty of title and any other representations and warranties made by the Consignor for the Bidder’s benefit. In the event that Bidder demonstrates in writing, satisfactory to the sole discretion of BERNERS Auction, that there was a breach of the Consignor’s warranty of title concerning a lot purchased by Bidder, BERNERS Auction may make demand upon the Consignor to pay to Bidder the Purchase Price (including any premiums, taxes, or other amounts paid or due to RR Auction). Should the Consignor not pay the Purchase Price to Bidder within thirty days after such demand (if any made), BERNERS Auction may disclose the identity of the Consignor to Bidder and may assign to Bidder all or some of BERNERS Auction’s rights against the Consignor with respect to such lot or property. Upon such disclosure and/or assignment, all responsibility and liability of BERNERS Auction, if any, with respect to said lot or item shall automatically terminate related to or arising from these Conditions of Sale or such transaction operating as a complete waiver and general release by Bidder as to BERNERS Auction and its agents, contractors, and affiliates, as to any and all claims concerning or related to the item, if any . BERNERS Auction shall be entitled to retain the premiums and other amounts paid to BERNERS Auction by Consignor only. The rights and remedies provided herein are for the original Bidder only and they may not be assigned or relied upon by any transferee or assignee under any circumstances.
16.4 Authenticity Challenge Process
(1) If Bidder wishes to dispute or challenge the Authenticity of the lot or item (including asserting that it is incorrect), Bidder must adhere to the following procedure: Within 30 days of the Auction Date, Bidder must present written evidence to BERNERS Auction, that the lot is not authentic as determined by a known expert in the field (and one recognized by BERNERS Auction within its discretion) and send the physical item or lot at issue to BERNERS Auction along with all evidence relied upon by Bidder for contesting the Authenticity. (“Authenticity Challenge Process”) “Authenticity” shall mean a gross discrepancy in the between the description, genuiness, or attribution of the item as represented by BERNERS Auction in the description or at the auction, and the item. If BERNERS Auction concurs that the lot is not Authentic as was represented (it is sole discretion), Bidder’s sole and exclusive remedy as against BERNERS Auction (inclusive of its affiliates, agents, employees, and contractors) shall be a refund of the purchase price of the subject item paid by Bidder, with no other costs, liabilities or amounts recoverable by Bidder. If BERNERS Auction does not agree with the assertion by Bidder, then the Parties shall follow the dispute resolution procedures of these Conditions of Sale. Strict adherence to the Authenticity Challenge Process is a condition of standing for Bidder to initiate suit or claim.
(2) So long as Bidder has complied with the Authenticity Challenge Process, any claim, suit or action, by Bidder concerning an AC or Certification of Authenticity, or related to the authenticity of the item must, without any exception, be brought within thirty (30) days of Auction Date and is subject to the other limitations and conditions stated in the Conditions of Sale.
16.5 Other Issues. Any dispute or claim by Bidder against BERNERS Auction (or its affiliates, directors, employees, officers, agents, or contractors)) other than Authenticity, concerning any item or lot bid upon, or purchased, including value, title, condition, bidding process, or description must be asserted (if at all) in the following manner:
(1) If the description of any lot in the Catalog is materially or grossly incorrect (e.g., gross cataloging error), or there is any other gross material issue pertaining to the item or lot, the item or lot may be returned if returned within five (5) calendar days of receipt, and received by BERNERS Auction no later than twenty-one (21) calendar days after the Auction Date with explanation in writing. If there is any discrepancy between the description in the Catalog and a certificate of auction, then the description is the certificate of auction (“Lot Challenge Process”). This paragraph shall constitute Bidder’s sole right with respect to the return of items, and no refunds shall be given for any items not returned to and received by BERNERS Auction within the period of time stated herein or not materially or grossly in deviation from the description. Such a refund is subject to BERNERS Auction’s sole discretionary review, and any request for refund must be made concurrently with returning the physical item or lot to BERNERS Auction. Any item not returned within said frame will constitute acceptance of the item and a waiver and release of any and all claims by Bidder pertaining to the item other than with respect to authenticity; and
(2) Provided that the Bidder has engaged in the Lot Challenge Process, any claim concerning such must be brought no later than one (1) year of the Auction Date for the item or lot at issue and is subject to the other limitations and conditions stated in the Conditions of Sale.
NO RETURN OR REFUND OF ANY AUCTION LOT WILL BE CONSIDERED OR PROVIDED EXCEPT AS PROVIDED IN THESE CONDITIONS OF SALE AND BIDDERS OR AS MAY BE REQUIRED BY LAW. FAILURE TO COMPLY WITH SUCH SHALL BE A COMPLETE DEFENSE TO ANY CLAIMS BY BIDDER RELATED TO THE CONDITIONS OF SALE, ANY AUCTION OR BID.
16.6 LIMITATION OF LIABILITY. For any and all claims by Bidder arising out of or related to this Agreement, Bidder’s viewing, bid, or purchase of items, or any agreement between the Parties, or otherwise, Bidder agrees that to the fullest extent such can be limited under the law, Bidder shall have no right to recover and hereby waives any and all rights to recover from against BERNERS Auction or its affiliates, directors, employees, officers, agents, or contractors, consequential or indirect damages, lost profits damages, punitive, exemplary, statutory (or multiplier damages), physical or emotional distress damages, general or special damages of any kind (beyond amounts actually paid by Bidder for item(s) at issue), and in the event of recovery of any damages whatsoever, such shall be limited by the amounts actually paid by Bidder to BERNERS Auction for the item(s) at issue in such claim, or if no money was paid to BERNERS Auction by Bidder for items at issue, or there items are at issue, the amount of $150.00.
Section 17
BERNERS Auction’s Additional Services
For Bidders who do not remove purchased property from BERNERS Auction’s premises, BERNERS Auction, in its sole discretion and solely as a service and accommodation to Bidders, may arrange to deliver for a fee within a 50 mile radius of Deland, Fl or have purchased lots packed, insured and forwarded at the sole request, expense, and risk of Bidder. BERNERS Auction assumes no and disclaims all responsibility and liability for acts or omissions in such packing or shipping by BERNERS Auction or other packers and carriers, whether or not recommended by BERNERS Auction. BERNERS Auction assumes no and disclaims all responsibility and liability for damage to frames, glass or other breakable items. Where BERNERS Auction arranges and bills for such services via invoice, BERNERS Auction will include an administration charge.
Section 18
Headings
Headings are for convenience only and shall not be used to interpret the substantive sections to which they refer.
Section 19
Entire Agreement
Except to the extent Bidder is also a consignor (in which case the terms of the consignment agreement shall also govern), these Conditions of Sale constitute the entire agreement between the Parties together with the terms and conditions contained in the auction Registration Form. They may not be amended, modified or superseded except in a signed writing executed by all parties. No oral or written statement by anyone employed by BERNERS Auction or acting as agent or representative of BERNERS Auction may amend, modify, waive or supersede the terms herein unless such amendment, waiver or modification is contained in a writing signed by all parties.
If any section of these Conditions of Sale or any term or provision of any section is held to be invalid, void, or unenforceable by any court or arbitrator of competent jurisdiction, the remaining parts of the agreement and remainder of the sections or terms and provisions of the section and all sections shall continue in full force and effect without being impaired or invalidated in any way.
Section 20
Governing Law and Enforcement
20.1 The Parties agree that all agreements between the Parties including but not limited to these Conditions of Sale are entered into in Deland, Florida, no matter where Bidder is situated and no matter by what means or where Bidder was informed of the Auction and regardless of whether catalogs, materials, or other communications were received by Bidder in another location.
20.2 The Parties agree that these Conditions of Sale, any other related agreement(s), along with all claims between the Parties, including those arising out of or related to such are governed by the laws of the State of Florida, without regard for its conflict of laws principles. The Parties agree that any dispute between the Parties, including but not limited to those related to or arising out of these Conditions of Sale, or related to or arising out of any other related agreement(s) shall be submitted to confidential binding arbitration (the ”Arbitration”) before a single Arbitrator of the American Arbitration Association (the “AAA”) The Parties agree that the Arbitration shall be conducted pursuant to the commercial rules of the AAA in Volusia County, Florida, unless the Consumer Arbitration Rules apply, in which case, such rules and venue will govern. In the event that the Parties cannot agree on the selection of the Arbitrator, then the Arbitrator shall be selected by the AAA. The prevailing Party in the Arbitration shall also recover all of its related fees and costs, whether before or after the formal institution of the Arbitration, including but not limited to its reasonable attorneys’ fees and costs, if BERNERS Auction prevails, such recovery, in addition to all remedies available at agreement or law, shall include the Buyer’s Premium as defined in these Conditions of Sale. Federal arbitration law, including the Federal Arbitration Act apply to this agreement to arbitrate and its related provisions. The arbitration and all related proceedings shall be held strictly confidential and all documents and discovery shall be held confidential and not used, published or disclosed publicly or to anyone outside the Parties or expert consultants or counsel who shall agree to hold such confidential.
20.3 The Parties consent to the State of Florida as exclusive jurisdiction and venue for all claims between the Parties except as provided specifically herein and may seek confirmation of the decision in the Arbitration pursuant to the Federal Arbitration Act in any Court of competent jurisdiction, including the courts of the State of Florida or the United States District Court for the State of Florida. To the extent such is necessary under the law, BERNERS Auction may enforce the Arbitration award against Bidder and any related Party in any court of competent jurisdiction. Nothing in this Agreement shall be construed as BERNERS Auction consenting to jurisdiction or venue in any location outside of the State of Florida.
THE PARTIES MAY NOT BRING CLAIMS AGAINST EACH OTHER AS A CLASS OR CLASS MEMBER IN ANY CLAIMED CLASS, OR IN A REPRESENTATIVE ACTION UNLESS OTHERWISE AGREED. UNLESS OTHERWISE AGREED, THE CLAIMS AGAINST EACH OF THE OTHER CANNOT BE CONSOLIDATED OR JOINED WITH MORE THAN ONE ADDITIONAL PERSON OR ENTITIES’ CLAIMS. NO INJUNCTIVE OR DECLATORY RELIEF SOUGHT BY BIDDER IF ANY, CAN AFFECT OR BE ORDERED TO AFFECT ANY OTHER BIDDERS OR PERSONS.
20.4 Except as provided specifically in these Conditions of Sale in Bidder’s Remedies against BERNERS Auction (along with its affiliates, directors, agents, officers, employees, and contractors) for any dispute, claim, cause of action related to or arising out of these Conditions of Sale or any other related agreement(s), brought by Bidder must be brought within the earlier of the Auction Date as it pertains to the item(s) at issue or no later than thirty (30) days of the acts, omissions or circumstances occurred giving rise to the alleged claim, without exception. This provision is intended as a full, complete and absolute bar to and release of any claims by Bidder initiated after one (1) year of such acts, omissions or circumstances. The Parties agree further that these waiver provisions are intended to be binding in the event of any dispute, specifically including but not limited to third party claims and cross-actions brought by Bidder. These provisions are consideration for the execution of these Conditions of Sale.
20.5 To the fullest extent under applicable law and except as specifically stated herein Bidder hereby holds harmless, releases and discharges BERNERS Auction and its agents, officer’s directors, affiliates, successors, and assigns from any and all claims, liabilities, obligations, promises, agreements, damages, causes of action, suits, demands, losses, debts, and expenses of any nature whatsoever, known or unknown, suspected or unsuspected existing prior to these Conditions of Sale. Bidder agrees to the Conditions of Sale and upon each instance that Bidder participates in any auction, bids, or otherwise agrees to such terms and reaffirms this release as of the date of so participating or agreeing unless Bidder otherwise provides clear written notice to BERNERS Auction prior to so bidding.
20.6 The Bidder hereby agrees that BERNERS Auction shall be entitled to present these Conditions of Sale to a court in any jurisdiction other than set forth in this paragraph as conclusive evidence of the Parties agreement, and the Parties further agree that the court shall immediately dismiss any action filed in such jurisdiction.
20.7 Liquidated Damages for Specific Breaches
In the event that Bidder provides false information in connection with registering for bidding, fails to correct or update information or breaches the Conditions of Sale by failing to pay the purchase price when due after becoming the winning bidder, as liquidated damages associated with such breaches, BERNERS Auction may obtain from Bidder the greater of (1) 150% the reserve of the item (if any); (2) the amount bidder bid; or (3), the full amount that bidder would have otherwise paid. Bidder will also be liable for an additional 20% of such amount to account for additional administrative costs, shipping, additional advertising, and other damages and liabilities fees that are difficult to calculate on an item-by-item basis.
20.8 Indemnity. Bidder agrees to defend, indemnify, hold harmless BERNERS Auction (along with its officers, directors, agents, contractors, and affiliates) from and against any and all claims, costs, fees, damages, and liabilities arising out of or related to these Conditions of Sale, view of items, or lots, bidding, or participation in any auction by BERNERS Auction, and/or or in any way connected to any item you viewed, bid upon or purchased through BERNERS Auction.
Section 21: State-by-State Law Issues
This Auction is being conducted in and the sale shall take place in the State of Florida. Notwithstanding, the foregoing, should these terms and conditions violate the law of any State should that state’s law be found to govern, or any provision herein determined to be invalid, the clause itself and the remainder of the Agreement shall be valid to the fullest extent allowed. Also, to the extent other states law apply to any transaction arising out of the Agreement (without admitting such), BERNERS Auction states:
For Residents of California:
SALE OF AUTOGRAPHED COLLECTIBLES: AS REQUIRED BY LAW, A DEALER WHO SELLS TO A CONSUMER ANY COLLECTIBLE DESCRIBED AS BEING AUTOGRAPHED MUST PROVIDE A WRITTEN EXPRESS WARRANTY AT THE TIME OF SALE. THIS DEALER MAY BE SURETY BONDED OR OTHERWISE INSURED TO ENSURE THE AUTHENTICITY OF ANY AUTOGRAPHED COLLECTIBLE SOLD BY THIS DEALER.
A written express warranty is provided with each autographed collectible, as required by law. This dealer may be surety bonded or otherwise insured to ensure the authenticity of any autographed collectible sold by this dealer.
Section 22
Glossary of Condition terms
Information provided to prospective Bidders with respect of any lot, including any pre-sale estimate, whether written or oral, and information in any catalogue, condition or other report, commentary or valuation, is not a representation of fact but rather a statement of opinion held by BERNERS Auction.
Use of the following terms constitutes an opinion as follows:
VERY FINE describes an item believed to be in virtually flawless condition, and is used sparingly for items of exceptionally attractive appearance.
FINE is the most common statement of condition, and applies to most items that we offer. It describes items that we believe to show expected handling wear, generally acceptable random flaws (such as light creases, small bends, etc.), and an overall appearance that is pleasing to the majority of collectors.
VERY GOOD describes an item that we believe exhibits more moderate flaws (such as toning, light staining, professional reinforcements or repairs, etc.). Most collectors would be comfortable with items in very good condition, and this would be the expected condition for many formats (early presidential documents, for example).
GOOD describes an item which we believe to have obvious visible flaws, including heavy wear, missing portions, or repairs that affect appearance; generally items in this condition are offered only if an item is otherwise believed to be exceedingly rare or important.
Bidder may call and request further details and information about BERNERS Auction opinions concerning any item via phone or email which shall provided in BERNERS Auction’s discretion.
Certificate of Auction, Certificate of Authenticity and Goods Acquired:
Bidder warrants that Bidder (and its agents, assigns, successors, and affiliates) shall not purposely deface, destroy, dismember, cut-up into parts the item or Lot purchased at auction from BERNERS Auction and in the event such shall occur whether purposefully or accidentally, Bidder (and its agents, assigns, successors, and affiliates) shall refrain from advertising, promoting, or marketing the item as having been purchased from BERNERS Auction and shall in no event display, expressly claim, or imply that the item was certified or auctioned in such state by BERNERS Auction. As liquidated damages for such breach, Bidder agrees to be liable to BERNERS Auction for the greater of the amount of three (3) times the hammer price of the item along with all other fees and costs as otherwise provided in this Terms of Sale.
