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These Terms and Conditions of Business represent the terms upon which the Auction House contracts with the Consignor and, acting in its capacity as agent on behalf of the Consignor, contracts with the Purchaser. These Terms and Conditions of Business shall apply to the sale of the Lot by the Auction House to the Purchaser on behalf of the Consignor, and shall supersede and take precedence over any previously agreed Terms and Conditions of Business. These Terms and Conditions of Business are hereby incorporated into and form part of the Consignment Agreement entered into by the Auction House and the Consignor.
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1.
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Property
Any Property delivered by the Consignor to the Auction House to be placed in the auction sale held by the Auction House on its premises, online or elsewhere and, specifically, that Property described by Lot number in the Auction House catalogue for the auction sale. The Auction House will have the authority to partition the Property into Lots (the “Lots”);
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2.
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Reserve
The reserve is a minimum price for the sale of the Lot, agreed to between the Consignor and the Auction House;
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3.
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Knocked Down
The conclusion of the sale of the Lot being auctioned by the Auctioneer;
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4.
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Expenses
Expenses shall include all costs incurred, directly or indirectly, in relation to the consignment and sale of the Lot;
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5.
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Hammer Price
The price at which the Auctioneer has Knocked Down the Lot to the Purchaser;
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6.
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Purchaser
The person, corporation or other entity or such entity's agent, who bids successfully on the Lot at the auction sale;
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7.
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Purchase Price
The Purchase Price means the Hammer Price and the Buyer’s Premium, applicable Sales Tax and additional charges and Expenses including expenses due from a defaulting Purchaser;
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8.
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Buyer's Premium
The Auction House rate of the Buyer’s Premium is seventeen percent (17%) of the Hammer Price of each Lot;
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9.
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Sale Tax
Sales Tax means the Federal and Provincial sales and excise taxes applicable in the jurisdiction of sale of the Lot;
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10.
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Proceeds of Sale
The net amount due to the Consignor from the Auction House, which shall be the Hammer Price less commission at the Published Rates and Expenses and any other amounts due to the Auction House or associated companies;
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11.
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Live and Online Auctions
These Terms and Conditions of Business apply to all live and online auction sales conducted by the Auction House. For the purposes of online auctions, all references to the Auctioneer shall mean the Auction House and Knocked Down is a literal reference defining the close of the auction sale.
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1.
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The Auction House
The Auction House acts solely as agent for the Consignor, except as otherwise provided herein.
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2.
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The Purchaser
a) The highest bidder acknowledged by the Auctioneer as the highest bidder at the time the Lot is Knocked Down;
b) The Auctioneer has the right, at his sole discretion, to reopen a Lot if he has inadvertently missed a Bid, or if a Bidder immediately at the close of a Lot, notifies the Auctioneer of his intent to Bid;
c) The Auctioneer shall have the right to regulate and control the bidding and to advance the bids in whatever intervals he considers appropriate for the Lot in question;
d) The Auction House shall have absolute discretion in settling any dispute in determining the successful bidder;
e) Every bidder shall be deemed to act as principal unless the Auction House has acknowledged in writing prior to the date of the auction, that the bidder is acting as agent on behalf of a disclosed principal and where such agency relationship is acceptable to the Auction House;
f) The Purchaser acknowledges that invoices generated during the sale or shortly after may not be error free, and therefore, are subject to review; and
g) Every bidder shall submit a fully completed Registration Form and provide the required information to the Auction House. Every bidder will be assigned a unique paddle number. For online auctions, a password will be created for use in the current and future online sales only. This online registration procedure may require up to twenty~four (24) hours to complete.
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3.
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Purchaser's Price
The Purchaser shall pay the Purchase Price to the Auction House.
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4.
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Sales Tax Exemption
All or part of the Sales Tax may be exempt in certain circumstances if the Lot is delivered or otherwise removed from the jurisdiction of sale of the Lot. It is the Purchaser's obligation to demonstrate, to the satisfaction of the Auction House, that such delivery or removal results in an exemption from the relevant Sales Tax legislation. Shipments out of the jurisdiction of sale of the Lot(s) shall only be eligible for exemption from Sales Tax if shipped directly from the Auction House and appropriate delivery documentation is provided, in advance, to the Auction House. All claims for Sales Tax exemption must be made prior to or at the time of payment of the Purchase Price. Sales Tax will not be refunded once the Auction House has released the Lot.
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5.
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Payment of the Purchase Price
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a) The Purchaser shall:
(i) Unless he has already done so, provide the Auction House with his name, address and banking or other suitable references as may be required by the Auction House; and,
(ii) Payment must be made within seven (7) days from the date of the auction by: a) Bank Wire direct to our account, b) Certified Cheque or Bank Draft, unless otherwise arranged in advance with the Auction House, or c) a cheque accompanied by a current Letter of Credit from the Purchaser's bank which will guarantee the amount of the cheque (release of Lot subject to clearance of cheque). Credit card payments subject to a maximum of $5,000, if you are providing your credit card details by fax (for purchases in North America only) or to a maximum of $25,000 if the card is presented in person with valid identification. In all other circumstances, we accept payment by wire transfer.
b) Title shall pass, and release and/or delivery of the Lot shall occur, only upon payment of the Purchase Price by the Purchaser to the Auction House.
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6.
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Descriptions of Lot
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a) All representations or statements made by the Auction House, or in the Consignment Agreement, or in the catalogue or other publication or report, as to the authorship, origin, date, age, size, medium, attribution, genuineness, provenance, condition or estimated selling price of the Lot, are statements of opinion only;
b) All photographic representations and other illustrations presented in the catalogue are solely for guidance and are not to be relied upon in terms of tone or colour or necessarily to reveal any imperfections in the Lot;
c) Many Lots are of an age or nature which precludes their being in pristine condition. Some descriptions in the catalogue or given by way of condition report make reference to damage and/or restoration. Such information is given for guidance only and the absence of such a reference does not imply that a Lot is free from defects, nor does any reference to particular defects imply the absence of others; and,
d) The prospective Purchaser must satisfy himself as to all matters referred to in (a), (b) and (c) of this paragraph by inspection, other investigation or otherwise prior to the sale of the Lot. If the prospective Purchaser is unable to personally view any Lot, the Auction House may, upon request, e~mail or fax a condition report describing the Lot to the prospective Purchaser.
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7.
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Purchased Lot
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a) The Purchaser shall collect the Lot from the Auction House within seven (7) days from the date of the auction sale, after which date the Purchaser shall be responsible for all Expenses until the date the Lot is removed from the offices of the Auction House;
b) All packing, handling and shipping of any Lot by the Auction House is undertaken solely as a courtesy service to the Purchaser, and will only be undertaken at the discretion of the Auction House and at the Purchaser’s risk. Prior to all packing and shipping, the Auction House must receive a fully completed and signed Shipping Form and payment in full of all purchases; and,
c) The Auction House shall not be liable for any damage to glass or frames of the Lot and shall not be liable for any errors or omissions or damage caused by packers and shippers, whether or not such agent was recommended by the Auction House.
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8.
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Risk
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a) The purchased Lot shall be at the Consignor's risk in all respects for seven (7) days after the auction sale, after which the Lot will be at the Purchaser’s risk. The Purchaser may arrange insurance coverage through the Auction House at the then prevailing rates and subject to the then existing policy.
b) Neither the Auction House nor its employees nor its agents shall be liable for any loss or damage of any kind to the Lot, whether caused by negligence or otherwise, while any Lot is in or under the custody or control of the Auction House.
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9.
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Non-payment and Failure to Collect Lot(s)
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If the Purchaser fails either to pay for or to take away any Lot within seven (7) days from the date of the auction sale, the Auction House may in its absolute discretion be entitled to one or more of the following remedies without providing further notice to the Purchaser and without prejudice to any other rights or remedies the Auction House may have:
a) To issue judicial proceedings against the Purchaser for damages for breach of contract together with the costs of such proceedings on a full indemnity basis;
b) To rescind the sale of that or any other Lot(s) sold to the Purchaser;
c) To resell the Lot or cause it to be resold by public or private sale, or by way of live or online auction, with any deficiency to be claimed from the Purchaser and any surplus, after Expenses, to be delivered to the Purchaser;
d) To store the Lot on the premises of the Auction House or elsewhere, and to release the Lot to the Purchaser only after payment of the Purchase Price and Expenses to the Auction House;
e) To charge interest on the Purchase Price at the rate of five percent (5%) above the Royal Bank of Canada base rate at the time of the auction sale and adjusted month to month thereafter;
f) To retain that or any other Lot sold to the Purchaser at the same or any other auction and release the same only after payment of the aggregate outstanding Purchase Price;
g) To apply any Proceeds of Sale of any Lot then due or at any time thereafter becoming due to the Purchaser towards settlement of the Purchase Price, and the Auction House shall be entitled to a lien on any other property of the Purchaser which is in the Auction House possession for any purpose; and,
h) To apply any payments by the Purchaser to the Auction House towards any sums owing from the Purchaser to the Auction House or to any associated company of the Auction House without regard to any directions of the Purchaser or his agent, whether express or implied.
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10.
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Guarantee
The Auction House, its employees and agents, shall not be responsible for the correctness of any statement as to the authorship, origin, date, age, size, medium, attribution, genuineness or provenance of any Lot or for any other errors of description or for any faults or defects in any Lot and no warranty whatsoever is given by the Auction House, its employees or agents in respect of any Lot and any express or implied conditions or warranties are hereby excluded.
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11.
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Attendance by Purchaser
a) Prospective Purchasers are advised to inspect the Lot(s) before the sale, and to satisfy themselves as to the description, attribution and condition of each Lot. The Auction House will arrange suitable viewing conditions during the preview preceding the sale, or by private appointment;
b) Prospective Purchasers are advised to personally attend the sale. However, if they are unable to attend, the Auction House will execute bids on their behalf subject to completion of the proper Absentee Bid Form, duly signed and delivered to the Auction House forty~eight (48) hours before the start of the auction sale. The Auction House shall not be responsible nor liable in the making of any such bid by its employees or agents;
c) In the event that the Auction House has received more than one Absentee Bid Form on a Lot for an identical amount and at auction those absentee bids are the highest bids for that Lot, the Lot shall be Knocked Down to the person whose Absentee Bid Form was received first; and,
d) At the discretion of the Auction House, the Auction House may execute bids, if appropriately instructed by telephone, on behalf of the prospective purchaser, and the prospective purchaser hereby agrees that neither the Auction House nor its employees nor agents shall be liable to either the Purchaser or the Consignor for any neglect or default in making such a bid.
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12.
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Export Permits
Without limitation, the Purchaser acknowledges that certain property of Canadian cultural importance sold by the Auction House may be subject to the provisions of the Cultural Property Export and Import Act (Canada), and that compliance with the provisions of the said act is the sole responsibility of the Purchaser.
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1.
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The Auction House
a) The Auction House shall have absolute discretion as to whether the Lot is suitable for sale, the particular auction sale for the Lot, the date of the auction sale, the manner in which the auction sale is conducted, the catalogue descriptions of the Lot, and any other matters related to the sale of the Lot at the auction sale;
b) The Auction House reserves the right to withdraw any Lot at any time prior to the auction sale if, in the sole discretion of the Auction House:
(i) there is doubt as to its authenticity;
(ii) there is doubt as to the accuracy of any of the Consignor's representations or warranties;
(iii) the Consignor has breached or is about to breach any provisions of the Consignment Agreement; or
(iv) any other just cause exists.
c) In the event of a withdrawal pursuant to Condition C.1.b.(ii) or C.1.b.(iii) , the Consignor shall pay a charge to the Auction House, as provided in Condition C.8.
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2.
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Warranties and Indemnities
a) The Consignor warrants to the Auction House and to the Purchaser that the Consignor has and shall be able to deliver unencumbered title to the Lot, free and clear of all claims;
b) The Consignor shall indemnify the Auction House, its employees and agents and the Purchaser against all claims made or proceedings brought by persons entitled or purporting to be entitled to the Lot;
c) The Consignor shall indemnify the Auction House, its employees and agents and the Purchaser against all claims made or proceedings brought due to any default of the Consignor in complying with any applicable legislation, regulations and these Terms and Conditions of Business; and,
d) The Consignor shall reimburse the Auction House in full and on demand for all Expenses or any other loss or damage whatsoever made, incurred or suffered as a result of any breach by the Consignor of C.2.a and/or C.2.c above.
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3.
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Reserves
a) The Auction House is authorized by the Consignor to Knock Down a Lot at less than the Reserve, provided that, for the purposes of calculating the Proceeds of Sale due to the Consignor, the Hammer Price shall be deemed to be the full amount of the agreed Reserve established by the Auction House and the Consignor.
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4.
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Commission and Expenses
a) The Consignor authorizes the Auction House to deduct the Consignor's Commission and Expenses from the Hammer Price and, notwithstanding that the Auction House is the Consignor's agent, acknowledges that the Auction House shall retain the Buyer’s Premium;
b) The Consignor shall pay and authorizes the Auction House to deduct all Expenses incurred on behalf of the Consignor, together with any Sales Tax thereon; and,
c) The charge for illustrating a Lot in the live auction sale catalogue shall be a flat fee paid by the Consignor of $500 for a large size reproduction and $275 for a small reproduction, per item in each Lot, together with any Sales Tax chargeable thereon. The Auction House retains all rights to photographic and printing material and the right of reproduction of such photographs. The charge for online digital photography, cataloguing and internet posting is a flat fee of $100 per Lot.
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5.
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Insurance
a) Lots are only covered by insurance under the Fine Arts Insurance Policy of the Auction House if the consignor so authorizes;
b) The rate of insurance premium payable by the Consignor is $15 per $1,000 (01.5%) of the greater value of the high estimate value of the Lot or the realized Hammer Price or for the alternative amount as specified in the Consignment Receipt;
c) If the Consignor instructs the Auction House not to insure a Lot, it shall at all times remain at the risk of the Consignor who hereby undertakes to:
(i) indemnify the Auction House against all claims made or proceedings brought against the Auction House in respect of loss or damage to the Lot of whatever nature, howsoever and wheresoever occurred, and in any circumstances even where negligence is alleged or proven;
(ii) reimburse the Auction House for all Expenses incurred by the Auction House. Any payment which the Auction House shall make in respect of such loss or damage or Expenses shall be binding upon the Consignor and shall be accepted by the Consignor as conclusive evidence that the Auction House was liable to make such payment; and,
(iii) notify any insurer of the existence of the indemnity contained in these Terms and Conditions of Business;
d) The Auction House does not accept responsibility for Lots damaged by changes in atmospheric conditions and the Auction House shall not be liable for such damage nor for any other damage to picture frames or to glass in picture frames; and,
e) The value for which a Lot is insured under the Fine Arts Policy of the Auction House in accordance with sub clause C.4.b above shall be the total amount due to the Consignor in the event of a successful claim being made against the Auction House.
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6.
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Payment of Proceeds of Sale
a) The Auction House shall pay the Proceeds of Sale to the Consignor thirty~five (35) days after the date of sale, if the Auction House has been paid the Purchase Price in full by the Purchaser;
b) If the Auction House has not received the Purchase Price from the Purchaser within the time period specified, then the Auction House will pay the Proceeds of Sale within seven (7) working days following receipt of the Purchase Price from the Purchaser; and,
c) If before the Purchase Price is paid in full by the Purchaser, the Auction House pays the Consignor an amount equal to the Proceeds of Sale, title to the property in the Lot shall pass to the Auction House.
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7.
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Collection of the Purchase Price
If the Purchaser fails to pay to the Auction House the Purchase Price within thirty (30) days after the date of sale, the Auction House will endeavour to take the Consignor's instructions as to the appropriate course of action to be taken and, so far as in the Auction House’s opinion such instructions are practicable, will assist the Consignor in recovering the Purchase Price from the Purchaser, save that the Auction House shall not be obligated to issue judicial proceedings against the Purchaser in its own name. Notwithstanding the foregoing, the Auction House reserves the right and is hereby authorized at the Consignor's expense, and in each case at the absolute discretion of the Auction House, to agree to special terms for payment of the Purchase Price, to remove, store and insure the Lot sold, to settle claims made by or against the Purchaser on such terms as the Auction House shall think fit, to take such steps as are necessary to collect monies from the Purchaser to the Consignor and, if appropriate, to set aside the sale and refund money to the Purchaser.
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8.
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Charges for Withdrawn Lots
The Consignor may not withdraw a Lot prior to the auction sale without the consent of the Auction House. In the event that such consent is given, or in the event of a withdrawal pursuant to Condition C.1.b (ii) or (iii), a charge of, whichever is greater, twenty~five percent (25%) of the high pre~sale estimate or the insured value, together with any applicable Sales Tax and Expenses, is immediately payable to the Auction House, prior to any release of property.
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9.
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Unsold Lots
a) Unsold Lots must be collected at the Consignor's expense within the period of ninety (90) days after receipt by the Consignor of notice from the Auction House. Upon the expiration of such a period, the Auction House shall have the right to sell such Lots by public or private sale and on such terms as it thinks fit and to deduct from the Proceeds of Sale any sum owing to the Auction House or to any associated company of the Auction House including Expenses, before remitting the balance to the Consignor. If the Consignor cannot be traced, the Auction House shall place the funds in a bank account in the name of the Auction House for the Consignor. In this condition the expression "Proceeds of Sale" shall have the same meaning in relation to a private sale as it has in relation to a sale by auction;
b) Lots returned at the Consignor's request shall be returned at the Consignor's risk and expense and will not be insured in transit unless the Auction House is otherwise instructed by the Consignor; and,
c) If any Lot is unsold by auction, the Auction House is authorized as the exclusive agent for the Consignor for a period of 90 days following the auction to sell such Lot privately for a price that will result in a payment to the Consignor of not less than the net amount (i.e., after deduction of the Auction House Commission and Expenses, to which the Consignor would have been entitled had the Lot been sold at a price equal to the agreed Reserve, or for such lesser amount as the Auction House and the Consignor shall agree). In such event the Consignor's obligations to the Auction House hereunder with respect to such a Lot are the same as if it had been sold at auction.
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10.
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Consignor's Sales Tax Status
The Consignor shall give to the Auction House all relevant information as to his Sales Tax status with regard to the Lot to be sold, which he warrants is and will be correct and upon which the Auction House shall be entitled to rely.
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11.
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Photographs and Illustrations
In consideration of the Auction House's services to the Consignor, the Consignor hereby warrants and represents to the Auction House that it has the right to grant to the Auction House, and the Consignor does hereby grant to the Auction House, a non-exclusive, perpetual, fully paid-up, royalty free and non-revocable right and permission to:
a) reproduce (by illustration, photograph, electronic reproduction, or any other form or medium whether presently known or hereinafter devised) any work within any Lot given to the Auction House for sale by the Consignor; and
b) use and publish such illustration, photograph or other reproduction in connection with the public exhibition, promotion and sale of the Lot in question and otherwise in connection with the operation of the Auction House's business, including without limitation by including the illustration, photograph or other reproduction in promotional catalogues, compilations, the Auction House's Art Index, and other publications and materials distributed to the public, and by communicating the illustration, photograph or other reproduction to the public by telecommunication via an Internet website operated by or affiliated with the Auction House ("Permission"). Moreover, the Consignor makes the same warranty and representation and grants the same Permission to the Auction House in respect of any illustrations, photographs or other reproductions of any work provided to the Auction House by the Consignor. The Consignor agrees to fully indemnify the Auction House and hold it harmless from any damages caused to the Auction House by reason of any breach by the Consignor of this warranty and representation.
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The Auction House as agent for the Consignor is not responsible for any default by the Consignor or the Purchaser.
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2.
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The Auction House shall have the right at its absolute discretion to refuse admission to its premises or attendance at its auctions by any person.
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3.
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The Auction House has the right at its absolute discretion to refuse any bid, to advance the bidding as it may decide, to withdraw or divide any Lot, to combine any two or more Lots and, in the case of dispute, to put up any Lot for auction again. At no time, shall a bidder retract or withdraw their bid.
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4.
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Any indemnity hereunder shall extend to all actions, proceedings, costs, claims and demands whatsoever incurred or suffered by the person for whose benefit the indemnity is given and, the Auction House shall hold any indemnity on trust for its employees and agents where it is expressed to be for their benefit.
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5.
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Any notice given hereunder shall be in writing and if given by post shall be deemed to have been duly received by the addressee within three (3) business days.
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6.
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The copyright for all illustrations and written matter relating to the Lots shall be and will remain at all times the absolute property of the Auction House and shall not, without the prior written consent of the Auction House, be used by any other person.
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7.
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This Agreement shall be governed by and construed in accordance with British Columbia Law and the laws of Canada applicable therein and all parties concerned hereby submit to the exclusive jurisdiction of the British Columbia Courts.
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8.
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Unless otherwise provided for herein, all monetary amounts referred to herein shall refer to the lawful money of Canada.
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9.
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All words importing the singular number shall include the plural and vice versa, and words importing the use of any gender shall include the masculine, feminine and neuter genders and the word "person" shall include an individual, a trust, a partnership, a body corporate, an association or other incorporated or unincorporated organization or entity.
Version: 2010.05
© Copyright: Heffel Gallery Limited
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Heffel's Code Of Business Conduct, Ethics And Practices
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