Trains, Sports and Toys

WITHERELL’S INC.

TERMS AND CONDITIONS OF SALE

The following are the terms and conditions applicable to your purchase of product from Witherell’s Inc (“Witherell’s”).  Please review them carefully.  By tendering payment for the product you agree to these terms and conditions.

1.              Guarantee.  Witherell’s provides the following guarantee with respect to your purchased product.  The guarantee is personal to you and may not be transferred. 

a)              Guarantee of Accurate Description.  Witherell’s guarantees the accuracy of the lot heading description applicable to your purchased product for a period of 45 days after the closing date of sale (the “Guarantee Period”).  For purposes of these terms and conditions, the closing date of sale is the date that is the latter of (i) the invoice for the product being fully paid in good and immediately available funds, and (ii) the product being delivered to you.

b)             Guarantee of Condition.  Witherell’s also guarantees the condition of the lot to be substantially as described in the lot condition field applicable to your purchased product during the Guarantee Period. 

c)              Exercise of Guarantee Rights.  To exercise your guarantee rights, you are required, prior to expiration of the Guarantee Period, to: (i) provide written notice to Witherell’s that you desire to exercise your guarantee rights, which notice will specify the lot number, date and location of the auction at which the product was purchased, and the reasons you believe the guarantee is applicable; and (ii) deliver or cause to be delivered the product FOB Witherell’s auction warehouse in Sacramento, California (or other location designated by Witherell’s) in the same condition as when purchased and free of any liens, restrictions on transfer or third party claims.  Witherell’s will then review the facts to determine whether the guarantee applies, which determination shall be made in the reasonable discretion of Witherell’s.  Witherell’s reserves the right at its expense to engage experts and produce reports, and will not be bound by any reports produced by or on behalf of the purchaser. In the event Witherell’s determines that the guarantee applies, and provided you have satisfied all applicable conditions, the sale will be rescinded and Witherell’s will refund to you the bid price and buyer’s premium that were paid for the product.

d)             Certain Limitations.  The guarantee of accurate description under Section 1(a) above does not apply if: (i) the lot heading description was in accordance with the opinion(s) of generally accepted scholar(s) and expert(s) (not including an employee or contractor of Witherell’s) at the date of the sale, or the catalogue description indicated that there was a conflict of such opinions; or (ii) the only method of establishing that the lot heading description applicable to your purchased product was not accurate would have been by means or processes that are either not then generally available or accepted, unreasonably expensive or impractical to use, or likely (in Witherell’s reasonable opinion) to have caused damage to the lot or likely to have caused loss of value to the lot; or (iii) there has been no material loss in value of the lot from its value had the lot heading description been accurate. The guarantee of condition under Section 1(b) above does not cover frames, mountings, glass or bases accompanying the lot.

e)              Sole Remedy.  It is specifically understood and agreed that the exercise of your guarantee rights, and if the guarantee is applicable the resulting rescission of the sale and refund of the bid price and buyer’s premium, is your sole and exclusive remedy and in lieu of any other remedies which might otherwise be available at law or in equity.

2.              Payment Terms; Invoice.  You are required to pay the invoice provided to you by Witherell’s within 15 days after you receive invoice.  If payment is not received when due, we reserve the right to charge a $35.00 storage fee per day after.  After you pay the invoice in full and we have verified that such payment is in good and immediately available funds, we will ship the product to you. We currently accept payment by check, cash (subject to applicable law), money order or wire transfer.  We do not accept payment via credit card.  We reserve the right to charge a $30 fee for returned checks.  If you will pay by wire transfer, you are required to include with the payment of your invoice a wire transfer fee payable to Witherell’s of $20 for domestic wires and $30 for international wires.  If payment is not timely made, in addition to any other rights that may be available to Witherell’s at law or in equity, Witherell’s reserves the right to (a) charge a storage fee of not less than $50 per day for each item, commencing two days after the payment is late, and/or (b) cancel the transaction, in which event neither party will have any further rights or liabilities to the other party in connection with such transaction.  In the event of such cancellation, Witherell’s shall be freely entitled to hold or dispose of the product in any manner it decides, and you will have no right, title or interest, whether express or implied, or by operation of law or otherwise, of any kind in the product.

3.              Shipping and Insurance.  Shipping will be provided by Witherell’s to the address you provide to Witherell’s at its standard rate, which will be set forth on your invoice.  Witherell’s will cause your product to be insured in exchange for a premium of 1.5% of the total bid.  You will be required to pay these shipping and insurance items at the time payment is made on your product.

4.              Taxes.  You are required to pay all state and local sales and use taxes, and if applicable, any federal luxury tax, on the total purchase price, except to the extent an exemption applies.  Currently, the California sales tax rate is 8.5%.  If you would like to claim a sales or use tax exemption, you are required to provide us with a fully executed, valid, complete and accurate resale certificate and any other documentation we may reasonably require to verify the exemption.  You will be required to pay taxes at the time payment is made on your product.

5.              Buyer’s Premium.  A buyer’s premium of 25% of the total bid is applicable to your purchase.  The buyer’s premium is payable by you as part of the total purchase price.  You will be required to pay the buyer’s premium at the time payment is made on your product.

6.              Exports and Permits.  It is your sole responsibility to identify and obtain any necessary export, import, firearm, endangered species or other permit for the lot. Any symbols or notices in the sale catalogue reflect our reasonable opinion at the time of cataloguing and are for bidders’ general guidance only.  We make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes.

7.              As Is Product.  Witherell’s provides the guarantee set forth in Section 1 above.  With the exception of this guarantee, all products are sold “AS IS” without any representations or warranties by us.  WITHERELL’S HEREBY DISCLAIMS ALL WARRANTIES ON THE PRODUCTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  IN ADDITION, WE MAKE NO WARRANTIES WITH RESPECT TO the correctness of the catalogue or other description of the physical condition, size, quality, rarity, importance, medium, provenance, exhibitions, literature or historical relevance of any property.  No statement anywhere, whether oral or written, whether made in a catalogue, an advertisement, a bill of sale, a posting or announcement on the Internet, or elsewhere, shall be deemed such a warranty, representation or assumption of liability. We make no representations and warranties, express or implied, as to whether the purchaser acquires any copyrights, including but not limited to, any reproduction rights in any property.  Except as may apply due to the guarantee under Section 1 above, we are not responsible for errors and omissions in any catalogue, glossary or supplemental material.

8.              Sole Remedy.  IN THE EVENT OF BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT WITH WITHERELL’S, YOUR SOLE REMEDY WILL BE LIMITED TO rescission of the sale and refund of the bid price and buyer’s premium.  THIS is your sole and exclusive remedy and in lieu of any other remedies which might otherwise be available at law or in equity.

9.              Limitation of Liability.  IN NO EVENT SHALL WITHERELL’S OR ANY OF ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR CONTRACTORS (COLLECTIVELY, THE "PROTECTED PARTIES") BE LIABLE FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, BREACH OF THIS AGREEMENT AND/OR THE PURCHASE AND SALE OF THE PRODUCT, EVEN IF SUCH PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED PARTIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE BREACH OF THIS AGREEMENT AND/OR THE PURCHASE AND SALE OF THE PRODUCT EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO WITHERELL’S FOR YOUR PURCHASE OF THE PRODUCT.  THE FOREGOING LIMITATIONS ARE APPLICABLE TO ANY CLAIM OR ACTION, WHETHER IN AN ACTION BASED ON CONTRACT, INDEMNIFICATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR IN AN ACTION ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING.

10.           Confidentiality.  These terms and conditions will be considered confidential.  Neither party will disclose the existence of these terms and conditions to any third party without the prior written consent of the other party.  The provisions of this paragraph shall survive the termination or expiration of these terms and conditions. 

11.           Arbitration.  In the event any dispute arises between Witherell’s and you concerning respective rights or duties hereunder, each party agrees to notify the other party immediately and to first attempt to resolve the matter by negotiation.  If no mutually agreeable resolution is had after fourteen days (14), a party may demand arbitration.  Any arbitration shall be under the Commercial Rules of the American Arbitration Association (AAA) and held in Sacramento, California.  One arbitrator shall conduct the arbitration and decide the matter.  Judgment on any award shall be binding and may be entered and enforced in any court of competent jurisdiction. 

12.           Miscellaneous.  These terms and conditions will be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.  Venue for any claim relating to these terms and conditions or the purchase of product shall lie exclusively in the state and federal courts located in Sacramento County, California.  These terms and conditions shall supersede any and all other agreements, whether written or oral, between the parties pertaining to the subject matter hereof.  Any waiver of rights under these terms and conditions must be in a writing signed by the party waiving its rights.  Neither party may assign these terms and conditions or any rights or obligations hereunder without the prior written consent of the other party.