(a). These Conditions of Sale (“Conditions of Sale”) contain all the terms governing Auctions (defined below) conducted by Cakebread Art Antiques Collectables, Inc. d/b/a New Orleans Auction Galleries (“NOAG”), and all the terms under which NOAG 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 NOAG, at which Bidders may place Bids to purchase one or more Lots offered for sale by NOAG. An Auction takes place over one or more days and includes separate auctions of one or more Lots within an event conducted by NOAG;
The “Auctioneer” is the auctioneer calling the Auction conducted by NOAG; 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 4 below;
“Catalogue” is the Auction catalogue utilized by NOAG 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 NOAG 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 NOAG 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, NOAG 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 NOAG 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 NOAG 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. NOAG 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, NOAG 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 NOAG 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. NOAG 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. NOAG 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, NOAG, or any of NOAG’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 NOAG 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 NOAG’s staff. NOAG reserves the right to decline to produce a Condition Report for any specific Lot, for any reason and in NOAG’s sole discretion.
(c). Catalogue and other descriptions.
(i) All statements made by NOAG 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 NOAG 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, NOAG, or any of NOAG’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 NOAG 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) NOAG shall not be liable for any errors or omissions in catalogue or other descriptions of the Property. Neither NOAG 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 NOAG’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) NOAG 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) NOAG 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. At the Auction
(a). Registration before bidding / Bidding requirements. In order to be accepted as a Bidder and allowed to place a Bid, all Bidders must meet all of the following requirements:
(i) A Bidder must complete and sign the attached registration form and provide identification to NOAG;
(ii) NOAG may require the production of bank or other financial references or any other additional information;
(iii) When making a Bid, a Bidder is accepting personal liability to pay the Purchase Price in full in the event that the Bidder submits the Winning Bid, unless it has been explicitly agreed in writing with NOAG before the auction of the Lot that the Bidder is acting as agent on behalf of an identified third party acceptable to NOAG, and that NOAG will only look to that principal for payment
(iv) All Bids are to be made in U.S. currency unless agreed upon between NOAG and the Bidder; and
(v) At NOAG’s sole discretion, NOAG may require any Bidder to post a cash deposit in an amount set by NOAG at its sole discretion. Such deposit may include, without limitation, a deposit of 25% of the Maximum Bid (or another amount set in NOAG’s sole discretion) in the case of Absentee Bids (defined below).
(b). Refusal of admission / Rejection of Bidders. NOAG has the right, at its complete discretion, to refuse admission to the premises or participation in any Auction. NOAG reserves the right to reject any Bidder for any reason whatsoever and in NOAG’s sole discretion.
(c). Absentee bids / Telephone bids.
(i) As a convenience to Bidders, NOAG may allow a Bidder to submit an absentee bid (“Absentee Bid”) or telephone bid (“Telephone Bid”) by filling out (in full) the section of the attached registration form marked “Absentee Bids / Telephone Bids.” In order to submit an Absentee Bid or Telephone Bid for an Auction, that registration form must be filled out and submitted to NOAG no later than 5:00 p.m. central time on the last business day before the commencement of the Auction. (NOAG reserves the right to accept late Absentee Bid or Telephone Bid submissions in NOAG’s sole discretion.) All Absentee Bid submissions must include a maximum bid amount (“Maximum Bid”).
(ii) If an Absentee Bid is submitted and accepted, at the time of the auction of the affected Lot, the Auctioneer or other NOAG staff will place the Absentee Bid at the amount of the opening bid amount, and will increase the amount as necessary until the earlier of (x) the Absentee Bid is the Winning Bid; or (y) the amount reaches the Maximum Bid. All such actions in this paragraph are at the sole discretion of the Auctioneer and/or NOAG. If NOAG receives Absentee Bids on a particular Lot with identical Maximum Bid amounts, and at the Auction these are the highest bids on the Lot, the Lot will be sold to the person whose Absentee Bid was received and accepted first. In the event of a tie bid between an Absentee Bid and a Bid submitted by a Bidder physically present at the Auction (or a Telephone Bid), the Lot will be sold to physically present Bidder (or bidder submitting the Telephone Bid).
(iii) If a Telephone Bid is submitted and accepted, at the time of the auction of the affected Lot, NOAG staff shall attempt to contact the Bidder using the telephone number provided. If successfully contacted, the Bidder shall then be afforded the opportunity to place a Bid on the Lot by telephone. Telephone Bids may be recorded. By submitting a Telephone Bid, the Bidder consents to the recording of the conversation and the placing of the Bid.
(iv) Execution of Absentee Bids and Telephone Bids is a free service undertaken subject to other commitments at the time of the Auction and neither NOAG nor the Auctioneer shall have any liability for failing to execute an Absentee Bid or Telephone Bid or for errors and omissions in connection therewith.
(d). Video or digital images. At some Auctions there may be a video or digital screen. Errors may occur in its operation and in the quality of the image and we do not accept liability for such errors. NOAG reserves the right to video tape and record proceedings at any Auctions. Any personal information obtained will be held in confidence by NOAG but may be used or shared with our affiliates and marketing partners for customer analysis purposes and to help us to tailor our services to buyer requirements. Any Bidder attending an Auction in person who does not wish to be video-taped may make arrangements to make a Telephone Bid in accordance with Section 3(c) above.
(e). Reserves. All Lots are offered subject to a reserve, which is the confidential minimum price below which the Lot will not be sold (the “Reserve”). The Reserve for a Lot will not exceed the low Estimate for that Lot. The Auctioneer may open the bidding on any Lot below the Reserve by placing a bid on behalf of the Seller. The Auctioneer may continue to bid on behalf of the Seller up to the amount of the Reserve, either by placing consecutive bids or by placing bids in response to other bidders. Notwithstanding the foregoing, a Lot may be sold at a Hammer Price below the Reserve, at the discretion of the Auctioneer and NOAG, in any manner consistent with the agreement between NOAG and the Seller.
(f). No bidding by Seller. Under no circumstances shall Seller (as agent or principal), whether by itself or through its representatives, employees or agents (except as through the Auctioneer as set forth in Section 3(e) above), enter or cause to be entered a Bid on Seller’s Lot.
(g). Auctioneer’s discretion. The Auctioneer has the right at his or her absolute and sole discretion to refuse any Bid, to advance the bidding in such a manner as he or she may decide, to withdraw or divide any Lot, to combine any two or more Lots, and in the event of any error or dispute, to determine the Winning Bid, to continue the bidding, to cancel the Sale or to reoffer and resell the Lot or item in dispute. If any dispute arises after the Sale, NOAG’s sale record is conclusive. Unless otherwise announced by the Auctioneer at the time of Sale, all Bids are per Lot as numbered in the Catalogue and no Lot shall be divided for Sale. NOAG and/or the Auctioneer may withdraw any Lot at any time before such Lot is offered at Auction, for any reason and in their sole and absolute discretion. (h). Successful bid and passing of risk. The Auctioneer shall have absolute discretion in determining the Winning Bid and the striking of the Auctioneer’s hammer marks the acceptance of the highest and best bid as the Winning Bid and the conclusion of a contract for sale between the Seller and the Buyer. Risk and responsibility for the Lot but not its title passes to the Buyer immediately upon announcement of the Winning Bid at the Auction. (i). Post-auction sale. In the event that there is no Winning Bid at Auction for a Lot, or the Lot is withdrawn from the Auction, or the Sale is cancelled for non-payment pursuant to Section 4(g) below, NOAG may sell the Lot at public or private sale at any time thereafter, in a manner consistent with the agreement between Seller and NOAG. (j). NOAG assumes no responsibility for failure to execute Bids for any reason whatsoever.
4. 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 NOAG:
(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 - note that there is NO DISCOUNT for LiveAuctioneers and Invaluable bidders) up to and including a Hammer Price of $200,000 and 10% of the amount by which the Lot’s Hammer Price exceeds $200,000; and
(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 NOAG 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: New Orleans Auction Galleries, 333 St. Joseph Street, New Orleans, Louisiana 70130, Telephone number: 504-566-1849. Payments may be made by certified check, cash, wire transfer, or credit card (Visa, Mastercard, and American Express). Payments will be accepted by non-certified check only in NOAG’s sole discretion, from Buyers that have been qualified by NOAG in NOAG’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 NOAG 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 NOAG receives full payment of the Purchase Price, and such payment has cleared and NOAG has received confirmation of all funds owed. At its sole discretion, NOAG may release a specific Lot at any time, notwithstanding the foregoing provision. In addition, NOAG may require that Lots not be released until the Buyer has cleared additional checks in NOAG’s sole discretion, including without limitation, any anti-money laundering or anti-terrorism financing checks to NOAG’s satisfaction. In the event that a Buyer fails to complete any anti-money laundering or anti-terrorism financing checks to NOAG’s satisfaction, NOAG 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 NOAG 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 NOAG’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. NOAG 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, NOAG 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 NOAG 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 NOAG, 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 NOAG deems necessary or appropriate. In connection with the item (xi) above, the Buyer will be deemed to have granted such security to NOAG and NOAG may retain the affected Lot and any property of the Buyer as collateral security for such Buyer’s obligations to NOAG 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 NOAG 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 NOAG’s facilities is the responsibility of Buyer. NOAG may, as a courtesy, assist Buyer with necessary arrangements, but by doing so, NOAG 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, NOAG 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 NOAG relating to a Lot including without limitation the contents of the Catalogue, is and shall remain at all times the property of NOAG and shall not be used by the Buyer or Bidder, nor by anyone else, without our prior written consent. NOAG 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, NOAG 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.