1. About BOC Auction
BOC Auction is a marketplace that allows users to offer, sell and buy just about anything in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. BOC Auction is not a traditional auctioneer but online software of auction that we offer to all.
Any guidance we provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, BOC Auction has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
3. Using BOC Auction
In connection with using or accessing our Services you will not:
post, list or upload content or items in inappropriate categories or areas on our sites;
breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;
use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;
fail to pay for items purchased by you, unless you have a valid reason as set out in an BOC Auction policy, for example, the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot contact the seller (see our Unpaid item policy);
fail to deliver items sold by you, unless you have a valid reason as set out in an BOC Auction policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
manipulate the price of any item or interfere with any other user's listings;
post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
take any action that may undermine the feedback or ratings systems (our Feedback policies);
transfer your BOC Auction account (including Feedback) and user ID to another party without our consent;
distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm BOC Auction or the interests or property of users;
use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of BOC Auction;
interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
export or re-export any BOC Auction application or tool, except in compliance with the export control laws, and rules and policies of any relevant jurisdictions;
infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to BOC Auction. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to BOC Auction or someone else;
infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;
commercialize any BOC Auction application or any information or software associated with such application, except with the prior express permission of BOC Auction;
harvest or otherwise collect information about users without their consent; or
circumvent any technical measures used to provide our Services.
Sellers must meet BOC Auction's minimum performance standards. Failure to meet these standards may result in BOC Auction charging you additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing BOC Auction and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating our policies prohibiting Offers to buy or sell outside of BOC Auction, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of BOC Auction, you may be liable to pay a final value fee applicable to that item, even if the item does not sell.
We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
5. Fees and Taxes
The fees we charge for using our Services are listed on our Selling fees pages. We may change our seller fees from time to time by posting the changes on the BOC Auction site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
If you are a seller, you are liable for transaction fees arising out of all sales made using some or all of our Services, even if sales terms are finalized or payment is made outside of BOC Auction. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of BOC Auction, you may be liable to pay a final value fee applicable to that item, even if the item doesn't sell, given your usage of our Services for the introduction to a buyer.
In any jurisdiction where BOC Auction has an obligation to collect sales taxes on sales you make using our Services, we may collect such sales taxes from you via the payment method on file under the terms of the Billing Agreement or via any other means available to us.
Seller fees don't purchase exclusive rights to item exposure on our Services. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
6. Listing Conditions
When listing an item for sale on our Services, you agree to comply with BOC Auction's Listing policies and Selling practices policy and that:
You assume full responsibility for the item offered and the accuracy and content of the listing,
Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). BOC Auction can't guarantee exact listing duration,
Your fixed-price listings may renew automatically every calendar month, based on the listing terms at the time, until all quantities sell or the listing is ended by you or BOC Auction, in its sole discretion,
Content that violates any of BOC Auction's policies may be modified, obfuscated or deleted at BOC Auction's sole discretion,
We may revise product data associated with listings to supplement, remove, or correct information,
We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
buyer's location, search query, browsing site, and history;
item's location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
seller's history, including listing practices, Detailed Seller Ratings, BOC Auction policy compliance, Feedback, and defect rate; and
number of listings matching the buyer's query,
To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer,
Some advanced listing upgrades will only be visible on some of our Services,
BOC Auction's Duplicate listings Policy may also affect whether your listing appears in search results,
Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results,
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results may vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers,
For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, BOC Auction may require the use of certain payment methods, subject to our Payments methods policy. For example, for inventory covered by authentication services, buyer and sellers may be subject to escrow, screening, shipping, and/or payment handling requirements.
7. Purchase Conditions
When buying an item on our Services, you agree to the Rules and policies for buyers and that:
You are responsible for reading the full item listing before making a bid or committing to buy,
You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted),
For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller,
We do not transfer legal ownership of items from the seller to the buyer, apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
8. International Buying and Selling; Translation
Many of our Services are accessible internationally. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
If you purchase an item on an BOC Auction site that is different from your registration site, you are subject to the User Agreement and applicable policies of that other BOC Auction site with respect to that particular purchase, as detailed in the International Selling Policy.
For sellers, you agree that we may display your listing for sale on an BOC Auction site other than the site where you listed your item for sale, based on your shipping settings. You may adjust these settings as detailed in the International Selling Policy. If you list your items with an international shipping option, the appearance of your listings on sites other than the listing site is not guaranteed. If you sell an item on an BOC Auction site that is different from your registration site, you are subject to the User Agreement and applicable policies, including any buyer protection programs, of that other BOC Auction site with respect to that particular sale, as detailed in the International Selling Policy.
You authorize us to use automated tools to translate your BOC Auction content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against BOC Auction, our assignees, our sublicensees, and their assignees in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. BOC Auction takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including BOC Auction users). You may use that content solely in your BOC Auction listings. BOC Auction may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that BOC Auction is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.
The name "BOC Auction" and other BOC Auction marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of BOC Auction in the U.S. and other countries. They may not be used without the express written prior permission of BOC Auction.
10. Holds and Restricted Funds
To protect BOC Auction from risk of liability for your actions as a seller, BOC Auction has at times recommended, and may continue to recommend, that PayPal restrict access to funds in a seller's PayPal account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, transaction value, or the filing of an BOC Auction Money Back Guarantee case. This may result in PayPal restricting funds in your PayPal account.
11. Authorization to Contact You; Recording Calls; Analyzing Message Content
BOC Auction may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. BOC Auction may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by the User Privacy Notice. As described in our User Privacy Notice, BOC Auction may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. If you do not wish to receive such communications, you may change your communications preference at any time, including through the Communication Preferences section of your My BOC Auction.
BOC Auction may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by BOC Auction to carry out the purposes identified above.
BOC Auction may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with BOC Auction or its agents for quality control and training purposes, or for its own protection.
BOC Auction's automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of BOC Auction's User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. BOC Auction may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If BOC Auction provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to our Services. Additionally, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
12. Additional Terms
Returns and Cancellations
Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, BOC Auction will set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within My BOC Auction. Where settings have been set to automatically accept requests for returns or replacements, an BOC Auction-generated return shipping label will be provided to your buyer. You agree to comply with our returns policy.
When an item is returned, to refund the buyer, you (as seller) will request paypal to refund to your buyer with the same the refund amount (in same or other currency) from your PayPal account, place the amount on your invoice, and/or charge your payment method on file.
The cost of return shipping for an item that is not as described is the seller's responsibility.
13. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in BOC Auction's applications may not occur in real time. Such functionality is subject to delays beyond BOC Auction's control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
the content you provide (directly or indirectly) using our Services;
your use of or your inability to use our Services;
pricing, shipping, format, or other guidance provided by BOC Auction;
delays or disruptions in our Services;
viruses or other malicious software obtained by accessing or linking to our Services;
glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any BOC Auction Service;
the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
a suspension or other action taken with respect to your account or breach of the Abusing BOC Auction Section above;
the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
14. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND BOC Auction HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term “related third parties” includes your and BOC Auction’s respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, BOC Auction’s, and these entities’ respective employees and agents.
You and BOC Auction agree that any claim or dispute at law or equity that has arisen, or may arise, between you and BOC Auction (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of BOC Auction or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and BOC Auction, except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
You and BOC Auction each agree that any and all disputes or claims that have arisen, or may arise, between you and BOC Auction (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of BOC Auction or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BOC Auction AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND BOC Auction AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court, subject to your and BOC Auction's right to appeal the court's decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA’s Commercial Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or the court.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same BOC Auction user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against BOC Auction prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and BOC Auction. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.BOCAuction.com at least 30 days before the effective date of the amendments and by providing notice through the BOC Auction Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.BOCAuction.com.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.BOCAuction.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the BOC Auction Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an BOC Auction representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the BOC Auction Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and BOC Auction, and supersede all prior understandings and agreements of the parties.
16. YOUR ACCEPTANCE OF THIS AGREEMENT
Please read these Terms & Conditions of Business (the 'terms') carefully. These terms apply to and govern your dealings with BOC Auctions Inc., including its employees, agents, officers and directors (collectively the 'Auction House' and/or 'us' and/or 'we'), whether in person, by proxy, through an agent, or through BOC Auctions.com (the 'website') or some other platform used to access the website, i.e. Liveauctioners.com. These terms apply, but are not limited, to consignors of goods, auction bidders (whether in person, by proxy, online or other), buyers, users of the website, in person in store customers and/or other parties to whom we enter into a commercial relationship in furtherance of our business. In entering into business with us, you agree that you understand these terms, have no objections hereto, and agree to be bound. These terms govern your transactions with us along with your use of our website and its contents, as well as any products and/or services transacted with us. These terms also govern your use or accessing of our website and its products and services, including but not limited to visiting, logging on to your account, browsing, adding a lot to your watch list, registering a bid, bidding, requesting e-flyers, ordering a catalogue, purchasing, or otherwise using the website (the "Services") you signify your acceptance and agreement, and the acceptance and agreement of any person you purport to represent (and for purposes of this agreement, "person" includes any type of incorporated or unincorporated entity, including your employer), without limitation or qualification, to be bound by this agreement, and to comply with all applicable laws and regulations, and you represent and warrant that you have the legal authority to agree to and accept this agreement on behalf of yourself and any person (such as your employer) you purport to represent. If you do not agree with each provision of this agreement, or you are not authorized to agree to and accept this agreement, or you do not have the legal authority to agree to and accept this agreement, you may not use the website or enter into a transaction with us or through us, i.e. placing bids at auction, consigning goods to us, buying goods from us etc.
17. CHANGES TO THIS AGREEMENT
These Terms and Conditions are current as of the date of at the bottom of this agreement, but are subject to revision by us at any time, without notice. Each time you enter into a transaction with us, or use our web site, you should review the current terms of this agreement. For each transaction and/or visit to our web site, you agree to be bound by the terms and conditions then in force. You may not change, supplement, amend or assign your rights or responsibilities under this agreement in any manner. It is our express intent that any changes to this agreement be in writing, and evidenced by writing.
18. MISPRINTS AND ERRORS, PRICES AND PURCHASES
We endeavour to provide current and accurate information on the website and in our Catalogues. Nevertheless, misprints or other errors may occur. Accordingly, we reserve the right to change the prices, listed fees and charges at any time, without notice or liability to you or any other person. Also, we cannot guarantee that the Services advertised on the website will be available when a bid is submitted, or a lot is purchased, or at any relevant time. Accordingly, we reserve the right at any time to reject, correct, cancel or terminate any Services or other request. We reserve the right to refuse to accept any request for products and/or services, notwithstanding any course of dealing between the Auction House and you in the past.
19. BIDDING AT AUCTION AND PURCHASING AT RETAIL
In purchasing items, either at retail or at auction, you further agree to be bound by the following terms:
a) You are responsible for reading the full item listing, examining, inspecting, making arrangements for inspection or otherwise fully satisfying yourself as to the authenticity, condition and provenance, if any, of each lot upon which you place a bid, and acknowledge that you have not relied upon any representation made by us, our employees, officers, directors or agents.
b) You acknowledge that in placing a bid, you are extending an irrevocable offer to enter into a legally binding contract for purchase, and that a legally binding contract to purchase is formed when such bid is either the winning bid, or is otherwise accepted by us. You acknowledge that we are entitled to payment in full immediately upon acceptance, and that we may immediately submit the charges to your credit card if on file. You further acknowledge that ALL SALES ARE FINAL WITH NO REFUND, NO EXCHANGE AND NO STORE CREDIT.
c) While the Auction House has endeavoured to catalogue and describe correctly each lot to be sold, such representations merely reflect our opinion, are cursory in nature, and as such, are not to be relied upon in making purchasing decisions. You acknowledge that errors may include, but are not limited to, the catalogue or contents therein, lot description or other descriptions of the physical condition, trueness of the photographic image used in the online lot description or catalogue, medium, importance, authorship, origin, age, size, attribution, genuineness, authenticity, provenance, exhibitors, literature or historical relevance of any lot or item contained therein, and as such, the Auction House shall not be liable for any such errors or omissions. Measurements on paintings are approximate only and are of image size. Further, the absence of description regarding an item or the failure to note a flaw or defect in an item does not imply that the lot is in perfect condition or free from defects, wear and tear, modification, alterations or other imperfections. Unless noted, all items have some amount of wear and tear, scratches, nicks, missing stitches or other imperfections, corresponding to their age and use. No statement made by us, whether written or oral, shall be deemed as a warranty, representation or condition. No sale will be set aside on account of any imperfection, regardless of whether noted. Each lot is sold "AS IS", "WHERE IS," "WITH ALL FAULTS" and "WITHOUT RECOURSE". Each and every lot is sold by us with all faults and defects and with all errors of description and is to be taken and paid for whether genuine and authentic or not and no compensation shall be paid regarding any imperfection, fault, damage or other defect. It is the responsibility of the buyer to determine the authenticity and condition (and to otherwise fully satisfy themselves) of each item prior to making a bid (or prior to purchase for those items listed by us for sale), and should the buyer lack the appropriate skills and knowledge, the buyer shall, at their expense engage an expert in determining authenticity, prior to purchase. No transaction shall be set aside on the basis that the buyer later determined any such item purchased to not be authentic, or have other fault or flaw, and all parties agree that each such sale shall have been intended by the parties to be for a "novelty or replica item," without regard to the description or image used, price actually paid or the market value of same (including the difference between the market value of the item as understood by the buyer, and the actual market value determined after proper inspection). Should the buyer place a bid or otherwise buy an item or lot without having satisfied themselves as to authenticity, condition or any other factor set forth in this subparagraph, the buyer shall be deemed to have intended to purchase a "novelty or replica item." In such case, the buyer agrees to waive any claim or defence alleging inadequate consideration. To be clear, the buyer assumes all risks relating to the authenticity and condition of items, along with the other factors set forth herein, and agrees to hold the Auction House harmless in regard to same.
The company make no representation or warranty and accepts no liability whatsoever to the seller, the buyer, or any third party in respect of the availability or issuance of valid import and export permits or the existence or exercise of pre-emption or other rights to purchase by governmental or regulatory authorities anywhere.
All lots that do not carry established documented provenance nor any past record of auction history record are described in the catalog as attributed.
All authorship of paintings in this catalog are described according to the following terms:
By [Artist Name]: In our opinion, the work is by the artist.
Attributed to [Artist Name]: In our opinion, the work may be ascribed to the artist on the basis of style, but there may be some question as to actual authorship.
In the manner of [Artist Name]: In our opinion, the work was executed by an unknown hand, but was designed deliberately to emulate the style of the artist.
After [Artist Name]: In our opinion, the work was executed by an unknown hand, but is a deliberate copy of a known work by the artist.
Circle of [Artist Name]: In our opinion, a work of the period of the artist showing his influence, closely associated with the artist but not necessarily his pupil.
Follower of [Artist Name]: In our opinion, a work by a pupil or a follower of the artist (not necessarily a pupil).
American, 19th century: In our opinion, this work was executed by an unknown hand, and can only be identified by origin (i.e., region, period).
Bears signature: In our opinion, the signature on the artwork may be spurious.
Apocryphal: Of doubtful authenticity.
d) You expressly acknowledge that the contents of our website and/or catalogs and/or other promotional material, including, but not limited to lot descriptions, does not constitute advice or a recommendation. You expressly acknowledge that you have a responsibility to seek professional third party advice and recommendations before acting, at the risk of overpaying for a "novelty item" or otherwise not receiving the item you had thought you were
bargaining for and purchasing. You expressly acknowledge that you have not acted, or omitted to act based on any information provided by us. As noted above, we list items as we understand them to be, based on our opinion and what we are told by the sellers of each item, and sometimes we are fooled or otherwise get it wrong.
e) All descriptions appearing on-line are subject to any variation announced by the auctioneer, on-line or otherwise, prior to the time of sale. No representation is made in respect to any copyrights available to any purchaser. All prospective purchasers shall have an opportunity to inspect all lots prior to the time of the auction and it is recommended that they do so. Purchasers assume all risks by failing to inspect and/or have items and/or lots properly authenticated prior to purchase. Nothing within this contract shall limit the purchaser's recourse against an expert retained by them to determine authenticity. We are an auction house and/or small collectibles store only, and are unable to, and do not, guarantee the authenticity of any items listed for sale, or the condition of same, whether at auction or retail.
f) Estimates of item value are merely that, and are intended to help prospective purchasers estimate what amount of money that might be required for the purchase of a particular lot. The lower estimate may represent the reserve price, and the price at auction will not be below that amount. Estimates do not include the Buyer's Premium. Estimates are subject to revision at any time, and are in no way definitive.
g) The auctioneer and BOC Auctions Inc. have the right to withdraw any item from bidding at any time, for any reason, and/or to divide any lot, or to combine any two or more lots, in their sole discretion. Likewise, the auctioneer and BOC Auctions Inc. have the right, at their discretion, and without penalty, to default or cancel any sale in the event of an error or dispute. The auctioneer has the right to refuse and/or reject any bid and to advance the bidding and set bidding increments, at his absolute discretion. The highest bidder accepted by the auctioneer shall be the purchaser. If any dispute should arise between bidders, or in the event of any doubt on the part of the auctioneer as to the validity of any bid, the auctioneer may, at his discretion, determine the successful bidder, or he may reoffer the lot, and in making this determination, the auctioneer shall have absolute discretion. The auctioneer will also have full discretion to reopen the bidding, cancel any sale and/or re-offer or resell the property. Should a dispute arise after the auction, our sale record is conclusive. Further, the purchaser acknowledges that invoices generated during the sale or shortly after may not be error free, and are subject to review to correct errors.
h) The purchaser will be the highest bidder for the lot accepted by the auctioneer and will thereupon pay the full purchase price, including the buyer's premium and all applicable taxes.
i) Each lot sold at auction is subject to a buyer's premium of 21% on top of the purchase and/or hammer price, payable by the purchaser, and shall form a lien and first security interest on any such item purchased.
j) The purchaser shall, at the time of opening an on-line account and at the time of registering and placing a bid, make available to us, the name, address and telephone number of the purchaser and make payment as aforesaid. Also, if the required payment is not complied with, we may assert a lien and first security interest on any works purchased by the purchaser and any funds owing by us to the consignor and in addition to all other remedies we may have. In our sole discretion, we may resell any of the lots affected without notice to the original purchaser and in such case the original purchaser shall be responsible to us and the consignor for: (a) any deficiency in price between the resale amount and the amount that should have been paid by the original purchaser, (b) reasonable charges for storage, (c) any excess commission which would have been earned by us had the original sale been completed in full, and (d) such additional fees and charges as may be reasonably incurred by us.
k) Risk of damage/loss is conveyed immediately after retail sale or upon receipt of payment (including waiting for a cashier's cheque to clear) after a successful bid at auction, as the case may be, and buyers are encouraged to immediately (after payment) remove such items from the premises and/or to secure their own insurance on same. While we will try to handle and store items left at our facility after sale, we disclaim all liability for loss or damage to those items, from all causes, including specifically our own negligence, or the negligence of those for whom we are at law responsible. If shipping is necessary, buyer shall make all arrangements for shipping, and pay all associated charges. Buyer is solely responsible for purchasing insurance on each item purchased.
l) Each lot offered for sale may be subject to an unpublished reserve in consultation between the consignor and us. The auctioneer may bid on behalf of the consignor. We also, as a service, may provide absentee order bids for purchasers who cannot participate in the on-line auction. We shall attempt to execute the absentee bid at the lowest possible price taking into account the reserve price and other bids. If identical bids are left by two or more parties, the first bid received by us will take priority. We shall not be responsible for errors or failures to execute such bids.
m) Arrangements for absentee bidding can be made by completing and submitting the Absentee Bid Form by 5:00 pm the day prior to sale day. This form can be obtained by emailing or calling our office. The Absentee Bid Form must contain your credit card number. We will endeavour to see that all absentee bids are executed in a fair, competitive and confidential manner, but we are not responsible for the failure to execute a bid, nor for any losses incurred thereby. Where appropriate, written bids will be rounded down to the nearest amount consistent with the auctioneer's bidding increments.
n) We reserve the right to refuse admission to our premises, any preview, on-line auction or to accept any bids from any particular person or persons at any on-line auction in our sole discretion.
o) Bidding is in Canadian or US dollars, as indicated.
p) Live internet bidding is available during the auction. BOC Auctions cannot be held liable for live internet bids that are not sent, received, or executed by the administrator. If you are bidding live on-line, please bid quickly because there is a time delay in receiving these live bids, and if problems are experienced, we may not receive your bid at all.
All items purchased in person at auction must be paid for on sale day. All items purchased via absentee bid must be paid for within five (5) business days of sale date. If a buyer fails to contact BOC Auctions within five (5) business days following the sale, the credit card used to secure the bid will be charged the full invoice amount, which bidder agrees to pay. For items purchased through telephone bidding and Live Auctioneers, BOC Auctions Inc. will contact and send an invoice to all winning bidders via e-mail at the completion of the auction. If paying by certified check, BOC Auctions reserves the right to hold the item(s) until the check has cleared, for up to 3 weeks. BOC Auctions accept the following forms of payment: BANK DRAFT, CERTIFIED CHEQUE, AND WIRE TRANSFER. In addition, items may be paid for with a properly authorized Visa or MasterCard. Please note we do not accept PayPal under any circumstances. Bad checks or non-payment of purchases will be prosecuted by BOC Auctions to the fullest extent permissible by law and the names of offenders will be announced to the public and to other auction firms.
21. NON-PAYMENT & FAILURE TO COLLECT LOT(S)
Where the purchaser fails to make payment in full, or to collect their lots as required once full payment has been received, the Auction House, in its absolute discretion, may elect 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:
i) To issue judicial proceedings against the Buyer for damages for breach of contract together with the costs of such proceedings on a full indemnity basis;
ii) To rescind the sale of that or any other Lot(s) sold to the Buyer;
iii) To charge the full purchase price against any credit cards then on file for the purchaser, without the need for any signatures;
iv) 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 Buyer and any surplus, after Expenses, to be delivered to the purchaser. By way of liquidated damages, in any subsequent sale, the Auction House will again be entitled to both a seller's commission and a buyer's premium, calculated in each instance based upon the greater of the sales prices from the various auctions;
v) To store the Lot on the premises of the Auction House or third party storage facilities with Expenses accruing to the account of the purchaser, and to release the Lot to the purchaser only after payment of the Purchase Price and Expenses to the Auction House;
vi) To charge compound interest on the Purchase Price (which includes the buyer's premium and HST if applicable), at the annual rate of fifty-nine
(59) percent, or otherwise at the maximum rate allowable by law;
vii) To retain that or any other Lot sold to, or placed for sale by, the purchaser at the same or any other auction and release the same only after payment of the aggregate outstanding Purchase Price;
viii) 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's possession for any purpose;
ix) To apply any payments made by the purchaser to the Auction House towards any sums owing from the purchaser to the Auction House without regard to any directions received from the purchaser or his agent, whether express or implied; and
x) In the absolute discretion of the Auction House, to refuse or revoke the Buyer's registration in any future auctions held by the Auction House.
xi) To transfer the putative purchasers' account for collections, for which purchaser further agrees to such additional charges as imposed by the collections agency and all reasonable charges incurred in a collections action, again, on a full indemnity basis.
It is the responsibility of purchaser to make all necessary arrangements in regard to shipping, including picking up, packing and crating of purchased items, and to pay any charges incurred for same. Such arrangements can be made through third party shipping companies (e.g. UPS Freight, FedEx Freight). We are not responsible for shipping, or problems arising from shipping or the use of third parties for shipping, including damages arising from shipping or preparing an item for shipping. We are unable to release your item(s) to a shipper without written instructions from you.
23. INSURANCE & TITLE
Until payment has been received by us (including the expiry of our holding period where payment was made by Cashiers' Cheque), it is the responsibility of the consignor to maintain insurance on their property, including insurance protecting them against damage to their property, including, but not limited to damage caused by our negligence, or the negligence of those for whom we are at law responsible. Once payment in full has been made, and title has passed to the purchaser, it is the responsibility of the purchaser to obtain insurance protecting them against damage to their property, including, but not limited to damage caused by our negligence, or the negligence of those for whom we are at law responsible.
24. CONSIGNOR DUTIES AND RESPONSIBILITIES
In selling items to us or through us (i.e. consignment), you agree to be bound by the following terms:
a) The Auction House shall have absolute discretion as to whether any lot or item is suitable for sale, the particular auction sale for the Lot, the date of the auction sale, changing the date a lot is to be sold at auction, 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 further 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 this agreement; or
iv) any other just cause exists.
c) In the event of a withdrawal for the reasons set forth in subparagraph b immediately above, the consignor shall pay a charge to the Auction House, as set forth below.
d) 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 that we are required to withdraw a lot for one of the reasons set forth in subparagraph b above, the consignor shall pay to us a charge of thirty-five percent (35%) of the high pre-sale estimate, as liquidated damages (as it is difficult to precisely quantify the time, expenses, lost profits and damage to reputation so incurred), together with any applicable taxes, prior to any release of the property. Where such fee is not paid, the Auction House may nonetheless proceed with selling such items at auction, and the consignor consents to same.
e) The consignor authorizes the auction house to deduct the seller's commission also referred to as the commission on sale, from the sale price. The consignor also acknowledges that in addition, the Auction House shall charge and retain the buyer's premium on each sale.
f) The consignor shall pay and authorize the Auction House to deduct all expenses incurred on behalf of the consignor, together with any taxes.
g) The Auction House retains all rights to photographic and printed material and the right of reproduction of such photographs.
25. CONSIGNOR WARRANTIES AND INDEMNITIES
a) The consignor warrants to the Auction House and to the Buyer 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 fully 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 fully 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 these Terms and Conditions of Business.
e) 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.
f) In consideration of the Auction House's services to the consignor, the consignor further represents and warrants 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:
i) 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
ii) 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, 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.
26. 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, provided, the Auction House has been paid the Purchase Price in full by the Buyer;
b) If the Auction House has not received the Purchase Price from the Buyer within the time period specified, then the Auction House will pay the Proceeds of Sale within seven (7) working days following receipt (and clearance of said funds as otherwise provided for in this agreement) of the Purchase Price from the Buyer;
c) Receipt of payment by the Auction House is a condition precedent to the Auction House making payment to the consignor, i.e. for unsold items and items where the purchaser defaults in making payment, no payment is due to the consignor; and
d) If before the Purchase Price is paid in full by the Buyer, 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. There shall be no obligation that the Auction House do this.
27. DEFAULT IN PAYMENT - AS TO CONSIGNOR
If the purchase price remains unpaid for (5) days after the date of sale, the Auction House will, to the extent it deems practical, seek to obtain payment from the putative purchaser, including taking any actions authorized elsewhere in this agreement, though the Auction House is under no obligation to do so. Further, 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 Buyer to