(a). These Conditions of Sale (“Conditions of Sale”) contain all the terms governing Auctions (defined below) conducted by the Arts District New Orleans (ADNO) and its affiliated galleries, and all the terms under which ADNO and the Seller (defined below) of a Lot (defined below) contract with the Buyer (defined below). These Conditions of Sale may be amended by posted notices or oral announcements made during the Auction.
(b). Under these Conditions of Sale, the following capitalized terms are defined as follows:
An “Auction” is a public auction conducted by ADNO, at which Bidders may place Bids to purchase one or more Lots offered for sale by ADNO. An Auction takes place over one or more days and includes separate auctions of one or more Lots within an event conducted by ADNO;
The “Auctioneer” is the auctioneer calling the Auction conducted by ADNO; A “Bid” is a bid made by a party at the Auction to purchase a Lot;
A “Bidder” is (i) a person making a Bid at the Auction (whether in person, through an absentee bid, through electronic or internet means, or through telephone bidding); and/or (ii) a person who attends the Auction and registers to make a Bid (whether in person, through an absentee bid, through electronic or internet means, or through telephone bidding);
A “Buyer” is the party that commits to purchase a Lot by submitting the Winning Bid at Auction;
“Buyer’s Premium” is defined in Section 3 below;
“Catalogue” is the Auction catalogue utilized by ADNO to list the Lots offered at Auction;
The “Estimates” are the high and low estimates of value for each Lot set forth in the Catalogue presented by ADNO in connection with the Auction or otherwise set forth and/or announced at the Auction;
The “Hammer Price” for a Lot is the amount of the Winning Bid at the Auction, as announced by the Auctioneer, exclusive of commissions, Buyer’s Premium, expenses, and any taxes or other charges;
A “Lot” is specific item of property offered for sale at Auction; The “Reserve” is defined in Section 3 below;
The “Purchase Price” is defined in Section 4 below; A “Sale” of a Lot occurs when a Winning Bid is declared at Auction for the Lot;
The “Seller” of a Lot is the party who consigned the Lot with ADNO for purposes of selling the Lot, or is otherwise the seller of the Lot;
The “Winning Bid” is, as to a particular Lot, the Bid recognized by the Auctioneer as the highest and best Bid for that Lot.
(c). Except as otherwise stated, ADNO acts as consignment agent for the Seller. The contract for the sale of the Lot is therefore made between the Seller and the Buyer.
(d). By bidding at the Auction as a Bidder or Buyer, and/or by your signature below, you agree to be bound by these terms.
2. Before the Auction
(a). ALL SALES ARE “AS IS, WHERE IS” WITH NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER.
(i) NEITHER ADNO NOR THE SELLER PROVIDES ANY GUARANTEE OR WARRANTY AS TO THE NATURE, DESCRIPTION, GENUINENESS, PROVENANCE, IMPORTANCE, OR CONDITION OF THE LOT. All Sales and Auctions are without any representation or warranty of any kind by ADNO or the Seller. Bidders and Buyers are responsible for satisfying themselves concerning the condition of the Lots and the matters referred to in the catalogue entry, the Condition Report, or in any other statement or writing provided. All Sales are final and are “AS IS WHERE IS.”
(ii) No warranty of redhibition. ANY WARANTY AGAINST REDHIBITORY DEFECTS IS WAIVED AND EXCLUDED. ADNO and Seller provide absolutely no warranty against redhibitory defects, including without limitation: (x) any defects rendering a Lot useless or its use
inconvenient; and (y) any defects diminishing the usefulness of a Lot; and any such warranties are waived and excluded. In addition, ADNO and Seller provide no warranties, guarantees, or representations as to whether a Lot is fit for its ordinary use, fit for Buyer’s intended use or for Buyer’s particular purpose.
(iii) No warranty against eviction. ANY WARRANTY AGAINST EVICTION IS WAIVED AND EXCLUDED. In the event that Buyer is evicted from possession of whole or part of the Lot, neither ADNO nor Seller have any duty whatsoever to return any part of the Purchase Price to Buyer. Buyer is buying at Buyer’s sole risk and peril as to third parties who may claim rights in the Lot after the Sale.
(iv) No warranty as to authorship. ADNO does not make any express or implied warranty as to authorship of works of art and fine art. No statement in the Catalogue or elsewhere, orally or in writing, shall be construed as an express or implied warranty, representation or limitation of liability as to authorship. Any such warranty is WAIVED.
(v) No warranty of peaceful possession, etc. The following warranties are waived and excluded: the absence of hidden defects, peaceful possession, and ownership. ADNO and Seller provide absolutely no warranty that the Lot is free from hidden defects, or for peaceful possession, or for ownership.
(vi) No other warranties. None of the Seller, ADNO or any of ADNO’s officers, employees or agents, give any representation, warranty or guarantee or assume any liability of any kind in respect of any Lot with regard to merchantability, fitness for a particular purpose, description, size, quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature or historical relevance. Except as required by local law, any express or implied warranty of any kind whatsoever is excluded by this Section 2(a).
(b). Examination of property / Condition Reports. Prospective Buyers and Bidders are strongly advised to examine personally any property in which they are interested, before the Auction takes place. As a convenience, Bidders may request that ADNO produce a Condition Report (“Condition Report”) for a Lot, which, if produced, will provide additional detail concerning the condition of the Lot as observed by ADNO’s staff. ADNO reserves the right to decline to produce a Condition Report for any specific Lot, for any reason and in ADNO’s sole discretion.
(c). Catalogue and other descriptions.
(i) All statements made by ADNO as to condition, authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, or historical relevance, whether in the Catalogue entry for the Lot, in the Condition Report, and/or in a bill of sale, or made orally or in writing elsewhere, are qualified statements of opinion only and are not to be relied on as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by ADNO of any kind. References in the Catalogue entry or the Condition Report to damage or restoration are for guidance only and should be evaluated by personal inspection by the Bidder or a knowledgeable representative. The absence of such a reference does not imply that an item is free from defects or restoration, nor does a reference to particular defects imply the absence of any others.
(ii) Without limiting the foregoing, none of the Seller, ADNO or any of ADNO’s officers, employees or agents, are responsible for the correctness of any statement of whatever kind concerning any Lot, whether written or oral, nor for any other errors or omissions in description or for any faults or defects in any Lot.
(iii) Any Estimates provided should not be relied on as a statement that this is the price at which the item will sell or its value for any other purpose. Any written or oral appraisal, Estimate or other statement of ADNO or our representatives with respect to the estimated or expected selling price of any Lot of Property is a statement of opinion only and shall not be relied upon by Bidders or prospective Bidders as a prediction or guarantee of the actual selling price.
(iv) ADNO shall not be liable for any errors or omissions in catalogue or other descriptions of the Property. Neither ADNO nor the Seller is responsible in any way for errors and omissions in the catalogue, or any supplemental material.
(d). Further acknowledgement. As a Bidder and prospective Buyer, you further agree and acknowledge that:
(i) You are not relying on ADNO’s skill or judgment in selecting to purchase any Lot;
(ii) No oral or written statements in the Auction Catalogue, Condition Report, or elsewhere are the cause of or reason behind your purchase of any Lot; and you would have incurred such purchase regardless of any oral or written statements about condition, attribution, kind, quality, value, or authorship made in the catalogue or elsewhere;
(iii) ADNO did not and could not have known that condition, attribution, kind, quality, expressed value, or authorship is the cause or reason why you decide to purchase any Lot;
(iv) Your purchase of any Lot is not intended to gratify a nonpecuniary interest; and
(v) ADNO did not know, nor should it have known, that any oral or written statement about a Lot in the catalogue, Condition Report or elsewhere would cause a nonpecuniary loss to a Buyer.
3. After the Auction
(a). In order to consummate and complete the Sale, the Buyer must tender payment in full of all of the following amounts (all such amounts together being the “Purchase Price”) to ADNO:
(i) the Hammer Price; and
(ii) the “Buyer’s Premium” consisting of a premium of 25% of the Hammer Price (discounted to 22% if the method of payment is by check, cash, or wire transfer [subject to a $30 fee for domestic wires and a $60 fee for international wires] by the end of the day on the fifteenth calendar day following the conclusion of the Auction.
(iii) Any applicable Louisiana, state, local, and federal or other taxes, calculated as required by law. Any documentation of tax exemption must be provided by the Bidder contemporaneously with the execution of the attached registration form.
(b). Payment and passing of title. The Buyer and any other Bidders are responsible for contacting ADNO for Auction results during the week after the conclusion of the Auction. Subject to the provisions of Section 4(i) below which may require earlier payment, the Buyer must pay the full Purchase Price no later than 4:30 pm central time on the fifteenth calendar day following the conclusion of the Auction. Payments may be submitted during business hours to: ADNO Member - JONATHAN FERRARA GALLERY, 400A Julia Street, New Orleans, Louisiana 70130, Telephone number: 504-522-5471. Payments may be made by (varies gallery to gallery) certified check, cash, wire transfer, or credit card (Visa, Mastercard, and American Express). Payments will be accepted by non-certified check only in ADNO’s sole discretion, from Buyers that have been qualified by ADNO in ADNO’s sole discretion. Title to the Lot does not pass to the Buyer until the full amount of the Purchase Price has been tendered and received by ADNO in good cleared funds, even in circumstances where the Lot has been released to the Buyer.
(c). Credit Cards. Your signature on this form constitutes permission to charge the full amount of the Purchase Price on your credit card, if you are the Buyer on a Lot and payment is not received within five business days of the close of the Auction. Your signature on this form also constitutes permission to charge the full amount of Storage Charges (defined below), if and when accrued, on a periodic basis on your credit card.
(d). Release of Lot to Buyer. No Lot will be released to the Buyer unless and until ADNO receives full payment of the Purchase Price, and such payment has cleared and ADNO has received confirmation of all funds owed. At its sole discretion, ADNO may release a specific Lot at any time, notwithstanding the foregoing provision. In addition, ADNO may require that Lots not be released until the Buyer has cleared additional checks in ADNO’s sole discretion, including without limitation, any anti-money laundering or anti-terrorism financing checks to ADNO’s satisfaction. In the event that a Buyer fails to complete any anti-money laundering or anti-terrorism financing checks to ADNO’s satisfaction, ADNO shall be entitled to cancel the Sale and take any other action permitted or required under applicable law. In addition, notwithstanding the foregoing, Lots cannot be released until after the conclusion of the Auction.
(e). Export/Import license and Dealers. It is the Buyer’s sole responsibility to obtain any relevant export or import license. The denial of any license or any delay in obtaining licenses shall not justify the rescission of any sale nor any delay in making bill payment for the Lot; and shall not limit or alter any of the obligations of the Buyer herein. Dealers purchasing for resale must enter appropriate their Dealer Resale Number on the attached registration form and provide ADNO with proper documentation.
(f). Storage charge. Subject to the foregoing provisions, any Lot that is not picked up by the end of the day on the fifteenth calendar day following the conclusion of the Auction is subject to an additional storage charge of $5.00 per Lot per day (“Storage Charge”) for as long as the Lot is stored at ADNO’s facilities. The outstanding amount of this Storage Charge must be paid in full (in addition to the Purchase Price) before such Lot will be released to the Buyer. Such Storage Charge accrues on a daily basis and is billed monthly. All items handled or stored will be at the Buyer’s risk. ADNO is not liable for any damage to Lots after the conclusion of the Auction.
(g). Remedies for non-payment. If the Buyer fails to make payment in full of the Purchase Price in good cleared funds within the time required by Section 4(b) above, or payment in full of any applicable Storage Charge when incurred, ADNO shall be entitled in its absolute discretion to exercise one or more of the following rights or remedies (in addition to asserting any other rights or remedies available by law):
(i) to charge outstanding amounts to the Buyer’s credit card;
(ii) to charge interest at the rate of one and one-half percent (1.5%) per month (but not to exceed the highest amount chargeable under applicable law);
(iii) to hold the Buyer liable for the total amount due and to commence legal proceedings for its recovery together with interest, legal fees and costs to the fullest extent permitted under applicable law;
(iv) to exercise any other remedy or remedies available under the law, including but not limited to a second sale of said item in accordance with the provisions of applicable law, including the subsequent enforcement of any deficiency against the initial buyer;
(v) to cancel the sale;
(vi) to resell the property publicly or privately on such terms as we shall think fit;
(vii) to pay the Seller an amount up to the net proceeds payable in respect of the amount bid by the defaulting Buyer;
(viii) to set off against any amounts which ADNO may owe the Buyer in any other transactions, the outstanding amount remaining unpaid by the Buyer;
(ix) where several amounts are owed by the Buyer to ADNO, in respect of different transactions, to apply any amount paid to discharge any amount owed in respect of any particular transaction, whether or not the Buyer so directs;
(x) to reject at any future Auction any Bids made by or on behalf of the Buyer or to obtain a deposit from the Buyer before accepting any Bids;
(xi) to exercise all the rights and remedies of a person holding security and/or privilege over any property in our possession owned by the Buyer, whether by way of pledge, security interest or in any other way, to the fullest extent permitted under Louisiana law (including without limitation under La. Civil Code art. 3247, La. R.S. 10:7-209 and 10:7-210 and other applicable law), or (xii) to take such other action as ADNO deems necessary or appropriate. In connection with the item (xi) above, the Buyer will be deemed to have granted such security to ADNO and ADNO may retain the affected Lot and any property of the Buyer as collateral security for such Buyer’s obligations to ADNO and to the Seller
If we resell the property under Section 4(g)(vi) above, the Buyer shall be liable for payment of any deficiency between the total amount originally due to us and the price obtained upon resale as well as for all costs, expenses, damages, legal fees and commissions and premiums of whatever kind associated with both sales or otherwise arising from the default. If we pay any amount to the Seller under paragraph (vii) above, the Buyer acknowledges that ADNO shall have all of the rights of the Seller, however arising, to pursue the Buyer for such amount.
(h). Shipping and packing. All shipping, packing, and transportation of Lots from ADNO’s facilities is the responsibility of Buyer. ADNO may, as a courtesy, assist Buyer with necessary arrangements, but by doing so, ADNO assumes no responsibility or liability for shipping, packing, moving, or transportation, including without limitation damage to Lots, damage to Buyer’s vehicle, or any personal injury of any persons involved.
(i). Earlier payment may be required. For any specific Lot, and notwithstanding the provisions of Section 4(b) above, ADNO may require, in its sole discretion, that the Hammer Price for the Lot be paid immediately upon the striking of the Auctioneer’s hammer and announcement of the Winning Bid, with the balance of the Purchase Price being due by the close of the Auction.
The copyright in all images, illustrations and written material produced by or for ADNO relating to a Lot including without limitation the contents of the Catalogue, is and shall remain at all times the property of ADNO and shall not be used by the Buyer or Bidder, nor by anyone else, without our prior written consent. ADNO and the Seller make no representation or warranty that the Buyer of a Lot will acquire any copyright or other reproduction rights in it.
If any part of these Conditions of Sale is found by any court to be invalid, illegal or unenforceable, that part shall be discounted and the rest of the conditions shall continue to be valid to the fullest extent permitted by law.
7. Data Collection
In connection with the operation of our auction business, ADNO may need to seek personal information from Bidders or obtain information about Bidders from third parties (e.g., credit checks from banks). Such information will be processed and kept by us in confidence. Some of Bidders’ personal data may also need to be shared with third party service providers (e.g., shipping or storage companies) for Bidders’ benefit. By participating in an Auction, you agree to all previously stated disclosure.
8. Law and Jurisdiction
The rights and obligations of the parties with respect to these Conditions of Sale, the conduct of the Auction and any matters connected with any of the foregoing shall be governed and interpreted under the laws of the State of Louisiana. By bidding at the Auction and/or through execution of the attached registration form, the Bidder consents to the exclusive jurisdiction of the courts of the State of Louisiana and the Federal courts of the United States of America located in the Eastern District of Louisiana.