Bankruptcy Auction Conditions of Sale
John Moran Auctioneers
Terms and Conditions
These Terms and Conditions of Sale (“Terms”) set out the terms by which the sale or purchase of property at auction through John Moran Auctioneers, Inc. (“Moran”) will be governed. These Terms constitute a legal and binding agreement between You and Moran.
1. AUCTION HOUSE AS AGENT. Except as otherwise expressly stated in writing, Moran acts as an agent for the seller. Thus, any contract for the sale of property through Moran is made between the respective seller and buyer.
2. BEFORE THE AUCTION
a. Public Preview. All property is available for inspection by public or private preview according to the auction information posted online and in the catalogue. In many cases, particular lots can be examined in advance by private appointment by contacting a customer service representative at [email protected] or by dialing 626-793-1833. Prospective buyers are strongly encouraged to personally examine any property in which they are interested.
b. Buyer’s Responsibility. Buyers are responsible for determining to their own satisfaction the true nature and condition of any lot prior to bidding. Though buyers are not legally required to inspect lots prior to purchase, failure to do so may constitute a waiver of complaint that an item was not delivered in a condition equal to the existent condition at the auction.
c. Property Sold “As Is”: Neither Moran nor the seller provides any guarantee in relation to the nature of the property, or to any errors or omissions in the catalogue or supplemental material. ALL PROPERTY IS SOLD “AS IS.” Condition reports are offered as a courtesy and are typically published in Moran’s catalogue, or online, or can be made available upon request. The absence of a condition report does not imply than an item is free from defects or restoration, nor does reference to particular defects imply the absence of others.
3. AT THE AUCTION
a. Admission. Moran’s auction is open to the public, although Moran reserves the right to, in its sole discretion, refuse admission or participation to anyone at any time. The auction may be recorded (visually, aurally, or otherwise) and all participants or attendees at the auction consent to such recording.
b. Buyer Registration. Prospective buyers must register with Moran before bidding. Moran may, in its sole discretion, require identification, financial references, or a deposit in advance of buyer eligibility. Registered bidders accept personal liability to pay the purchase price, including the Buyer’s Premium, as described in Section 4(a) below, plus all applicable charges, unless Moran agrees in advance that the bidder is acting as agent on behalf of an identified third party that Moran, in its sole discretion, deems acceptable. In such case, Moran will look to the third party for payment.
c. Bidding Guidelines. Bidding, whether in person or by agent, absentee bid, telephone, or internet, constitutes a bidder’s acceptance of these Terms. The highest bidder acknowledged by the auctioneer shall be the buyer. The auctioneer retains the absolute right to reject any bid; withdraw, pass, or divide any lots; combine multiple lots; advance the bidding at their absolute discretion; and–in the case of error or dispute, whether during or after the sale–determine the successful bidder; continue the bidding; cancel the sale; or re-offer and sell the lot in question. Under no circumstances are sellers, or agents acting on their behalf, permitted to bid on their own property. In the event of any dispute after the auction, Moran’s sale record shall be conclusive as to the successful bidder and the price of the successful bid.
d. Absentee, Telephone, and Internet Bidding. Moran offers absentee, telephone, and internet bidding as a convenience to clients and does not accept liability for errors or failures to execute bids. Absentee and telephone bids must be recognized by Moran prior to auction day. When identical absentee bids are submitted that become the highest bids at the auction, the bid first received by Moran shall be accepted as the winning bid. Telephone bidders are encouraged to leave minimum bids in case of technical failure.
e. Reserves. Unless Moran expressly indicates otherwise, lots may be offered subject to a reserve, which is the confidential minimum price below which the lot will not be sold. The reserve for any lot shall not exceed its published estimate. Moran shall act to protect the reserve by bidding through the auctioneer, who may open bidding on any lot below the reserve by placing a bid on the seller’s behalf. The auctioneer may continue to bid on behalf of the seller up to the reserve amount, either by placing consecutive bids or by placing bids in response to other bidders. Lots without reserves are typically opened for bidding at 50% of their low estimate. In the absence of a bid at that level, the auctioneer may proceed backwards at their discretion or deem the lot unsold if a bid is not recognized.
4. AFTER THE AUCTION
a. Payment and Title Transfer. The buyer agrees to pay the sum of the hammer price plus Buyer’s Premium, plus any applicable sales tax. The Buyer’s Premium will be calculated as follows: 25% on the first $500,000 of the hammer price, plus 18% on any amount between $500,001 and $1,000,000, and 15% on any amount above $1,000,000 when paying by cash, check, or wire transfer.
Successful bidders using Live Auctioneers or Bidsquare platforms will be charged a Buyer’s Premium calculated as follows: 30% on the first $500,000 of the hammer price, plus 23% on any amount between $500,001 and $1,000,000, and 20% on any amount above $1,000,000 when paying by cash, check, or wire transfer
Credit card payments will be subject to an additional 3.5% acceptance fee. This fee is not more than the cost of accepting these cards. Buyers outside the United States must submit payment via wire transfer. Credit cards are not an accepted form of payment for buyers outside the United States. Buyers are strongly encouraged to provide full payment at the auction. Payment must be received by Moran within five business days immediately following the auction. The buyer does not acquire title to and may not take possession of the lot until all amounts (including the hammer price, premium, and applicable taxes) due to Moran have been paid in full. Once paid, title to the Property will pass to the buyer pursuant to the order of the Bankruptcy Court.
b. Collection. Buyers are strongly encouraged to collect purchased items from the sale site at the time of the auction. Packing material and labor are provided free of charge at the sale site during the auction. Packing and handling of purchased lots is undertaken by Moran solely as a convenience to customers. If a buyer opts to use this courtesy packing and handling service, Moran is not liable for damage to property, regardless of cause.
c. Storage and Abandonment. Following the auction, uncollected lots shall be relocated to and stored in Moran’s warehouse. Moran shall retain possession of all purchases until full payment has been received from the buyer. Lots remaining uncollected after the fifth business day following the sale, regardless of payment status, are subject to a per-lot daily storage charge of $10.00. In addition to other remedies available by law, Moran reserves the right to impose upon delinquent buyers a separate 1% monthly charge (of the purchase price, or the maximum permitted by law) commencing on the sixth business day after the sale date. If a buyer fails to retrieve a purchased lot within thirty (30) days after the date of sale (the “Retrieval Period”), Moran may, without further notice, (a) continue to store the lot in Moran’s warehouse, or at the warehouse of a third-party, subject to the storage charge described above; (b) deliver the lot to the buyer at the buyer’s expense; or (c) sell the lot at auction without reserve at a place and time determined by Moran in its sole discretion.
d. Consequences of Late Pick-Up/Abandoned Property. Notwithstanding the foregoing, Moran has no duty to store any lot indefinitely. Any purchased lot that remains in Moran’s possession sixty (60) days after the Retrieval Period (collectively, ninety (90) days) will be deemed abandoned (“Abandoned Property”) and title to it will pass to Moran. Moran may, in its sole discretion, discard or sell any Abandoned Property and may keep any proceeds from any such sale. Moran may not be held liable for any claims related to Abandoned Property. Moran is not responsible for damage or loss that occurs to Abandoned Property and Moran is not responsible for insuring Abandoned Property after the Retrieval Period.
e. Shipping. As a courtesy to buyers, Moran provides a list of preferred shippers who are in the business of transporting antiques and works of art. Buyers are responsible for arranging their own shipping estimates and deliveries. Moran, in its sole discretion and as a courtesy to buyers, may arrange to have purchased lots packed, insured, and forwarded by a third-party shipper at the request, expense, and risk of the buyer. In circumstances where Moran arranges for such third-party services, Moran may apply an administration charge of 15% of that service fee. Moran assumes no responsibility for acts or omissions in such packing or shipping by other packers or carriers, even if recommended by Moran. Moran also assumes no responsibility for any damage to picture frames or to the glass therein.
f. All Sales Final. This is a court-ordered bankruptcy sale, and as such, all items are sold “AS IS, WHERE IS” WITH ALL FAULTS AND WITHOUT RECOURSE. All sales are final. Notwithstanding other terms mentioned herein, refunds may be given in Moran’s sole discretion.
5. LIABILITY AND WARRANTY
a. Liability. The buyer expressly agrees that (i) neither Moran nor the seller shall be liable, in whole or in part, for any special, indirect, or consequential damages, including, without limitation, loss of profits, and (ii) the buyer’s damages, if any, are limited exclusively to the original purchase price paid for the lot.
b. No Warranty. ALL PROPERTY IS SOLD AS IS WITHOUT REPRESENTATIONS OR WARRANTY. Neither the seller nor Moran or its associates make any representation, express or implied, warranty (including merchantability and fitness), or guarantee in condition, age, size, provenance, medium, signature, inscription, exhibition history, importance, rarity, country of origin, genuineness, historical relevance, monetary or other value, framing or lack thereof, mounting, conservation, coloring, palette, inscription, edition, style, label, or other descriptor. No statement in the catalogue, brochures, website, bill of sale, invoice, any supplementary material, or statements by any Moran employee shall be deemed a warranty, representation or assumption of liability.
c. Descriptions. No warranty, whether express or implied, is made with respect to any description contained in this auction or any second opinion. Any description of the items or second opinion is for the courtesy of identifying the items for those bidders who do not have the opportunity to view the lots in person, and no description of items has been made part of the basis of the transaction or has created any express warranty that the goods would conform to any description made by the auctioneer. Color variations can be expected in any electronic or printed imaging and are not grounds for the return of any lot.
d. Estimates. All estimates provided are carefully considered opinions of Moran’s specialists and are merely suggested guidelines for interested buyers. Buyers must be aware that all property sold is subject to fluctuating values depending on the subjective interests of collectors and a wide variety of other uncontrollable factors. The lots auctioned may sell at prices above, within, or below estimate.
e. Notices, Demands, and Refunds. Any demands for refunds, problems with the lot(s) sold or notices of any kind concerning the auction shall be made (1) in writing and addressed to John Moran Auctioneers, Inc, 145 East Walnut Avenue, Monrovia, CA 91016 or (2) via email at [email protected]
6. ADDITIONAL MATTERS
a. Copyright. The copyright on all images, illustrations, and written material produced by or for Moran for its auction is and will remain at all times the property of Moran. Moran and the seller make no representation or warranty that the buyer will acquire any copyright or reproduction rights to a purchased lot.
b. Buyer’s Breach of Conditions. If a buyer fails to comply with any of these Terms, Moran may, in addition to asserting all remedies available by law, including the right to hold that buyer liable for the purchase price, (i) cancel the sale, retaining as liquidated damages any payment made by the buyer; (ii) resell the property without reserve at public auction or privately upon notice to the buyer; or (iii) take such other action as Moran deems necessary or appropriate. If Moran resells the property, the original defaulting buyer shall be liable for the payment of any deficiency between the original sale price and any subsequent mitigation sale, including warehousing, the expenses of both sales, reasonable attorney’s fees, commissions, incidental damages, and all other charges due hereunder. In the event that such buyer pays a portion of the purchase price for any property, Moran’s shall apply the payment received to such property that Moran, in its sole discretion, deems appropriate. Moran shall have the benefit of all rights of a secured party under the Uniform Commercial Code as adopted in the State of California.
c. Governing Law. The rights and obligations of the parties with respect to these Terms and the conduct of the auction shall be governed and interpreted by the laws of the State of California.
d. Arbitration. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by private arbitration before an arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction.
This clause does not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
In any arbitration arising out of or related to these Terms, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
e. Severability. Should any of these conditions be deemed unenforceable, invalid, or illegal in any court having jurisdiction, that part shall be severed from these Terms and shall have no effect on the enforceability of the remaining provisions contained herein, which shall remain valid to the fullest extent permitted by law.