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ment, the bidder guarantees payment of the Purchase Price of a successful bid.
7. Possession and Removal; Charges. No portion of any lot may be removed from the premises or possession transferred to Buyer unless Buyer has fully complied with these Conditions of Sale and the terms of the Registration Form, and unless and until Profiles has received the Purchase Price funds in full. Notwithstanding the above, all property must be removed from the premises by Buyer at his or her sole expense not later than seven (7) calendar days from the invoice date. If all or any property has not been so removed within that time, in addition to any other remedies available to Profiles all of which are reserved, a han- dling charge of one percent (1%) of the Purchase Price per month will be assessed and payable to Profiles by Buyer, with a minimum of five percent (5%) assessed and payable to Profiles by Buyer for any prop- erty not removed within sixty (60) days. Profiles shall additionally have the option, in its sole discretion, of transferring any of such property to a public warehouse at the full risk and expense of Buyer. Profiles, in addition, reserves the right to impose a late charge of fifteen percent (15%) per year on the Purchase Price if Buyer does not make full payment in accordance herewith. Profiles and Buyer acknowledge and agree that these charges are reasonably imposed to partially compensate Profiles for losses and expenses associated with any such delays.
8. Off-Site Bidding. Bidding by telephone, facsimile-transmission (fax-in), on-line, or absentee bidding (advance written bids submitted by mail) are offered solely as a convenience and permitted subject to advance arrangements, availability, and Profiles’ approval which shall be exercised at Profiles’ sole discretion. Neither Profiles nor its agents or employees shall be held liable for the failure to execute bids or for errors relating to any transmission or exe- cution thereof. In order to be considered for off-site bidding in any manner, Bidders must comply with all of these Conditions of Sale and the terms contained on the Registration Form.
9. Profiles’ Remedies. Failure of the Bidder/Buyer to comply with any of these Conditions of Sale or the terms of the Registration Form, is an event of default. In such event, Profiles may, in addition to any other available remedies specifically including the right to hold the defaulting Bidder/Buyer liable for the Purchase Price or to charge and collect from the defaulting Bidder/Buyer’s credit or debit accounts as provided for elsewhere herein: (a) cancel the sale, retaining any payment made by the Buyer as damages (the Bidder/Buyer understands and acknowledges that Profiles will be substantially damaged should such default occur, and that damages under sub- part (a) are necessary to compensate Profiles for such damages; (b) resell the property without reserve at public auction or pri- vately; (c) charge the Bidder/Buyer interest on the Purchase Price at the rate of one and one-half per cent (1.5%) per month or the highest allowable interest rate; (d) take any other action that Profiles, in its sole discretion, deems necessary or appropriate to preserve and protect Profiles’ rights and remedies. Should Profiles resell the prop- erty, the original defaulting buyer shall be liable for the payment of any deficiency in the purchase price and all costs and expens- es associated therewith , including but not limited to warehousing, sales-related expenses, reasonable attorney fees and court
costs, commissions, incidental damages and any other charges due hereunder which were not collected or collectable.
In the event that such buyer is the successful bidder on more than one lot and pays less than the purchase price for the total lots purchased, Profiles shall apply the payment received to such lot or lots that Profiles, in its sole discretion, deems appropriate. If Profiles does not exercise such discretion, the lots to which the payment shall be applied will be in descending order from the highest purchase price to the lowest.
Any buyer failing to comply with these Conditions of Sale shall be deemed to have granted Profiles a security interest in, and Profiles may retain as collateral such secu- rity for such buyer’s obligations to Profiles, any property in Profiles’ possession owned by such buyer. Profiles shall have the benefit of all rights of a secured party under the Uniform Commercial Code (U.C.C.) as adopted by the state of California.
10.Warranties. Profiles does not provide any warranties to Bidders or Buyers, whether express or implied, beyond those expressly provided for in these Conditions of Sale.All property and lots are sold “as is” and “where is.” By way of illustration rather than lim- itation, neither Profiles nor the consign- or makes any representation or warranty, expressed or implied, as to merchantability or fitness for intended use, condition of the property (including any condition report), correctness of description, origin, measure- ment, quality, rarity, importance, exhibition, relevance, attribution, source, provenance, date, authorship, condition, culture, genu- ineness, value, or period of the property.
Additionally, neither Profiles nor the con- signer makes any representation or war- ranty, express or implied, as to whether the Buyer acquires rights in copyright or other intellectual property (including exhibition or reproduction rights) or whether the property is subject to any limitations such as ‘droit morale’ (moral rights) or other rights affecting works of art. Bidder/Buyer acknowledges and agrees that if the prop- erty embodies any copyright, trademark, or other intellectual property, by the purchase of such property, Buyer/Bidder is not acquiring any interest in any copyright, trademark or other intellectual proper- ty that may be embodied or reflected in such property, but is acquiring only such physical embodiment and/or reflection. Profiles does not make any representation or warranty as to title. All descriptions, photographs, illustrations, and terminology including but not limited to words describ- ing condition (including any condition reports requested by Bidder), authorship, period, culture, source, origin, measure- ment, quality, rarity, provenance, impor- tance, exhibition, and relevance, used in the catalog, bill of sale, invoice, or anywhere else, represent a good faith effort made by Profiles to fairly represent the lots and property offered for sale as to origin, date, condition, and other information contained therein; they are statements of opinion only. They are not representations or warranties and Bidder agrees and acknowledges that he or she shall not rely on them in determin- ing whether or not to bid or for what price. Price estimates (which are determined well in advance of the auction and are therefore subject to revision) and condition reports are provided solely as a convenience to Bidders and are not intended nor shall they be relied on by Bidders as statements, rep- resentations or warranties of actual value or
predictions of final bid prices. Bidders are accorded the opportunity to inspect the lots and to otherwise satisfy themselves as to the nature and sufficiency of each lot prior to bidding, and Profiles urges Bidders to avail themselves accordingly. Lots and property are not returnable to Profiles for any reason except under Buyer’s limited Remedies set forth in Section 13 below and under the express terms and conditions of Section 13.
11. Limitation of Damages. In the event that Profiles is prevented for any reason from delivering any property to Buyer or Buyer is otherwise dissatisfied with the performance of Profiles, the liability, if any, of Profiles, shall be limited to, and shall not exceed, the amount actually paid for the property by Buyer. In no event shall Profiles be liable for incidental, special, indirect, exemplary or consequential damages of any kind, including but not limited to loss of profits, value of investment or opportunity cost.
12. Unauthorized Statements. Under no circumstances is any employee, agent or representative of Profiles authorized by Profiles to modify, amend, waive or con- tradict any of these Terms and Conditions, any term or condition set forth on the Registration Form, any warranty or limita- tion or exclusion of warranty, any term or condition in either the Registration Form or these Terms and Conditions regarding payment requirements, including but not limited to due date, manner of payment, and what constitutes payment in full, or any other term or condition contained in any documents issued by Profiles unless such modification, amendment, waiver or contradiction is contained in a writing signed by all parties. Any statements, oral or written, made by employees, agents or representatives of Profiles to Bidder, includ- ing statements regarding specific lots, even if such employee, agent or representative represents that such statement is authorized, unless reduced to a writing signed by all parties, are statements of personal opinion only and are not binding on Profiles, and under no circumstances shall be relied on by Bidder as a statement, representation or warranty of Profiles.
13. Buyer’s Remedies.This section sets forth the sole and exclusive remedies of Buyer in conformity with Sections 10 (“Warranties”) and 11 (“Limitation of Damages”) herein, and is expressly in lieu of any other rights or remedies which might be available to Buyer by law.The Buyer hereby accepts the benefit of the consignor’s warranty of title and any other representations and warran- ties made by the consignor for the Buyer’s benefit. In the event that Buyer proves in writing to Profiles’ satisfaction that there was a breach of the consignor’s warranty of title concerning a lot purchased by Buyer, Profiles shall make demand upon the con- signor to pay to Buyer the Purchase Price (including any premiums, taxes, or other amounts paid or due to Profiles). Should the consignor not pay the Purchase Price to Buyer within thirty days after such demand, Profiles shall disclose the identity of the consignor to Buyer and assign to Buyer all of Profiles’ rights against the consignor with respect to such lot or property. Upon such disclosure and assignment, all responsibility and liability, if any, of Profiles with respect to said lot or property shall automatically terminate. Profiles shall be entitled to retain the premiums and other amounts paid to Profiles - this remedy is as to the consign- or only.The rights and remedies provided herein are for the original Buyer only and
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