Terms and Conditions

The following are the terms and conditions (the “Terms”) under which you (a “User”) may use the web site of Witherell Inc. (the “Company”) at www.witherells.com and/or any other addresses (any or all of which are herein referred to as the “Site”). Please read this page carefully.

We may change the Terms and Conditions from time to time, at any time without notice to you, by posting such changes on the Site. BY ACCESSING, USING, BROWSING, OR BUYING ON THE SITE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. If you do not agree to these Terms, you may not access or otherwise use the Site.

Specific terms, in addition to these Terms, are provided with respect to transactions conducted on or in connection with the Site, and other terms may be provided for the use of certain other items, areas or services provided on or in connection with the Site, and you agree to be bound by such terms.

YOUR USE OF THE SITE CONSTITUTES YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN OR OTHERWISE POSTED ON THE SITE. (THE CONTENT OF SUCH AGREEMENT, INCLUSIVE OF THE TERMS AND ALL SUCH ADDITIONAL CONDITIONS AND NOTICES, ARE TOGETHER REFERRED TO HEREIN AS THE “AGREEMENT.”) IF YOU DO NOT ACCEPT ANY OF THE PROVISIONS OF THE AGREEMENT, DO NOT USE THE SITE.

Section 1. The Material on the Site

The Site is not directed to children younger than 13 and is offered only to users 13 years of age or older. If you are under 13 years old, please do not use the Site. Any person who provides their personal information through the Site represents to us that they are 13 years of age or older.

The content of the Site is not intended for minors. Such content extends to a wide range of art and antiquities, is generally uncensored, and may include nudity or other graphic or literary content that some people may consider offensive, as well as access to live or electronic bidding on articles such as firearms and other items that may be harmful and/or illegal in the hands of minors and children and/or inappropriate for them to view or have access to. If you allow your child to use your computer, it is your responsibility to determine whether any of the services, content and subject matter displayed on the Site is inappropriate for your child, and to control the child’s use of the computer accordingly. If you yourself find offensive content of the type referred to above, you should not use the Site.

The contents of the Site, such as text, graphics, images, photographs, audio, video, data, coding, scripts, computer programs and other material (“Material” or “Materials”), are protected by copyright under the laws of the United States as well as other countries, and are owned or controlled by the Company or by third parties that have licensed their Material to the Company. The Company authorizes you to view and download a single copy of the Material solely for your personal, non-commercial use, or in the case of dealers, to display to your clients solely for purposes of facilitating a transaction with the Company. The use of any software that is made available for downloading from the Site (“Software”) is governed by the terms of the software license agreement accompanying such Software (the “License Agreement”), and is conditioned upon your agreement to be bound by the terms of such License Agreement. All rights in and to the Material not expressly granted to you in the Agreement are reserved. Neither the availability of, nor anything contained within the Site shall be construed as conferring any license under any of the Company’s or any third party’s intellectual property rights, other or further than as expressly provided in the foregoing provisions of this paragraph, whether by implication, estoppel or otherwise.

Unauthorized use of the Material may violate copyright, trademark, and other laws. You may not sell, prepare derivative works based on or modify the Material (including, without limitation, preparation of summaries of the Material or “thumbnails” of any images therein), or reproduce, publicly display, publicly perform, distribute, or otherwise use the Material in any way for any public or commercial purpose. The use of the Material or any portion thereof on any other web site, or in any publication, database, catalog or compilation, or in any other environment for any purpose other than personal browsing of the Site without the express prior written permission of the Company is strictly prohibited.

The trademarks, logos, service marks and trade names (collectively the “Marks”) displayed on the Site or on content available through the Site are registered and unregistered Marks of ours and others and may not be used unless authorized by the trademark owner. All Marks not owned by us that appear on the Site or on or through the Site’s services, if any, are the property of their respective owners. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Mark displayed on the Site without our express written permission or that of the third party rights holder.

We respect the intellectual property rights of others, and require that the people who use the Site do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Company’s Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:

Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Brian L. Witherell
Vice President
Witherell – Online Auctions Division
voice: (916) 446-6490
e-mail: [email protected]

Section 2. Privacy; User Submissions

The Company is committed to maintaining your privacy. The Company does, however, gather certain information that you provide to the Site. For information regarding the Company’s policies for using User information please read our Privacy Policy located on the Site.

By posting communications (including any graphic or multimedia content) to any Public Area, you automatically grant the Company a royalty-free, perpetual, irrevocable non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, publicly perform, and publicly display the communication and any trademarks, names or likenesses therein alone or as part of compilations or other works in any form, media, or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees. (Provisions conferring similar rights on the Company may apply under separate terms or agreements with respect to certain matter submitted other than in Public Areas; you should check the applicable agreements or terms provided by the Company in order to ascertain your rights.)

The Company does not screen communications in advance and is not responsible for screening or monitoring material posted by Users. As a User, you are responsible for your own communications and are responsible for the consequences of their posting. You must not do any of the following things while accessing or using the Site or using the Material: (1) post or transmit any material unless you are the owner of all patent, trademark, copyright, trade secret or other proprietary rights (“Rights”) therein, or have the permission of the owner of the Rights to post or transmit such material to the Site; (2) post material that otherwise violates any Rights of any third party or violates or infringes on the privacy or publicity rights of third parties; (3) post material that is obscene, defamatory, threatening, harassing, abusive, hateful, embarrassing or otherwise objectionable to another User or any other person or entity; (4) post sexually-explicit language or images; (5) post advertisements or solicitations of business; (6) post or transmit any chain letters or pyramid schemes; (7) impersonate another person or entity; (8) intentionally or unintentionally violate any applicable local, state, national or international law while using or accessing the Site or the Material; or (9) post or transmit any information containing a virus or other harmful component.

If notified by a User of communications that allegedly do not conform to any term of this Agreement, the Company may investigate the allegation and determine in its sole discretion whether to remove or request the removal of the communication. The Company has no liability or responsibility to Users for performance or non-performance of such activities. The Company reserves the right, in its sole discretion, to expel Users and prevent their further access to the Site for violating this Agreement or the law. The Company also reserves the right at all times to disclose any information as necessary or deemed desirable by the Company to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in the Company’s sole discretion.

THE COMPANY DOES NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY COMMUNICATIONS POSTED BY OTHER USERS OR ENDORSE ANY OPINIONS EXPRESSED BY USERS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON MATERIAL POSTED BY OTHER USERS WILL BE AT YOUR OWN RISK.

Section 3. Registration, Passwords and Signatures

In consideration of your use of the Site, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by any registration form that you may fill out on any Site (such information being the “User Data”) and (b) maintain and promptly update the User Data to keep it true, accurate, current and complete. If you provide any User Data that is untrue, inaccurate, not current or incomplete or the Company has grounds to suspect that such User Data is untrue, inaccurate, not current or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).

You may receive a password and/or account designation, or a digital signature upon completing the registration process on the Company’s Site. You are responsible for maintaining the confidentiality of any such password, digital signature and account, and are fully responsible for all activities that occur under your password, digital signature or account. You agree to (a) immediately notify the Company of any unauthorized use of your password, digital signature or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph.

Section 4. Use of the Auction or Commerce Portions of the Site

Any auction or commerce portions of the Site are available only to authorized Users. This excludes in all cases minors (persons who have not reached their eighteenth birthday).

Section 5. Links to Other Sites

The Site may contain links to third-party web sites that are maintained by others. These links are provided solely as a convenience to you and not as an endorsement by the Company of the contents of such third-party web sites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party web sites. If you decide to access linked third-party web sites, you do so at your own risk.

Section 6. Disclaimer of Warranties

THE SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT, REPRESENT OR COVENANT THAT THE SITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITE WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE COMPANY ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, AUDIO OR SOFTWARE FROM THE SITE. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.

WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SITE IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE SITE AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SITE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITE.

WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, THE COMPANY AND ITS AFFILIATES, SUPPLIERS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITE, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH THE COMPANY OR ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SITE ARE PROVIDED BY THE COMPANY “AS IS,” EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND THE COMPANY OR ITS LICENSOR OR SUPPLIER.

Section 7. Limitations on Liability

IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES OR ANY OF THEIR DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE, WHETHER IN AN ACTION BASED ON A CONTRACT INDEMNIFICATION, OBLIGATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE SITE, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES 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 TERMS AND CONDITIONS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO THE COMPANY FOR YOUR USE OF THE SITE OR PURCHASE OF PRODUCTS VIA THE SITE (NOT INCLUDING AUCTION ITEM PURCHASES).

Section 8. Indemnity

You agree to defend, indemnify, and hold harmless the Company, its officers, shareholders, directors, employees and agents, from and against any losses, liabilities, damages, costs, and expenses, including, without limitation, reasonable legal, expert and accounting fees, incurred in connection with any claims, actions or demands alleging or resulting from your use of the Material (including Software), your breach of this Agreement, or your violation of law or of the rights of any third party. The Company shall provide notice to you promptly of any such claim, suit, or proceeding and, if it is one asserted by a third party, shall provide reasonable assistance to you, at your expense, in defending any such claim, suit or proceeding. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with the Company’s defense of such claim.

Section 9. Export Control of Software and Technical Data

The following applies with respect to Software and other Material of a technical nature that you may obtain from the Site (note that other requirements set forth in Section 10 below may apply with respect to items offered for sale, purchased or sold). The United States controls the export of such items. You agree to comply with such restrictions and not to export or re-export the Material (including Software) to countries or persons prohibited under the export control laws. By downloading the Material (including Software), you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department’s Table of Denial Orders or the U.S Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Software and/or other Material.

Section 10. Import and Export Regulations Regarding Tangible Property

The United States and most foreign countries regulate the importation and exportation of tangible property. Many countries require a declaration of export for property that is leaving the country. Additionally, most countries require an Import Declaration at the time of customs clearance of property into that country. Upon import, these countries may impose duties, other taxes and/or restrictions on the property. Many countries also prohibit or restrict importation or exportation of property containing ivory, tortoiseshell, whalebone, and/or products derived from other endangered or protected species, and require special licenses or permits in order to import or export such property. Other countries regulate movement of antiquities and cultural items, which in some cases are subject to a right of pre-emption or compulsory purchase by the country from which they are to be exported. It is the responsibility of the seller to ensure that the item is properly and lawfully exported from the country in which it is located. It is the responsibility of the buyer to ensure that the property is properly imported into the buyer’s country. If you participate in the auction or commerce portions of the web site, and, as a result, purchase property that you plan to ship to another country, you agree that you are responsible for familiarizing yourself with and complying with any and all applicable rules and regulations.

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.

Section 11. General

The Company makes no claim that the Materials are appropriate for any particular purpose or audience, or that they may be downloaded outside of the United States. Access to the Materials (including Software) may not be legal by certain persons or in certain countries. If you access the Site from outside of the United States, you are responsible for compliance with the laws of your jurisdiction.

The Site is based in the State of California, U.S.A. All legal issues arising from or related to the use of the Site shall be construed in accordance with and determined by the laws of the State of California applicable to contracts entered into and performed within the State of California without respect to its conflict of laws principles. By using the Site, you agree that the exclusive forum and venue for any claims or causes of action arising out of your use of the Site shall be in the federal or state courts located in Sacramento County, California. You hereby consent to the personal jurisdiction of such courts and irrevocably waive, to the fullest extent permitted by law, any objection which you may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. The failure of the Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site must be filed within one (1) year after such claim or cause of action arose or be forever barred. This Agreement constitutes the entire Agreement between you and the Company with respect to the use of the Site.

Terms and Conditions of Sale

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

1. Guarantee. Witherell 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 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 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 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 auction warehouse in Sacramento, California (or other location designated by Witherell) in the same condition as when purchased and free of any liens, restrictions on transfer or third party claims. Witherell will then review the facts to determine whether the guarantee applies, which determination shall be made in the reasonable discretion of Witherell. Witherell 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 determines that the guarantee applies, and provided you have satisfied all applicable conditions, the sale will be rescinded and Witherell 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) 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 within 7 days after you have received it. If payment is not received when due, we reserve the right to charge interest of 12% per annum (or if lower, the lowest amount permissible under applicable law) on the amount due. 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 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 at law or in equity, Witherell 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 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 to the address you provide to Witherell at its standard rate, which will be set forth on your invoice. Witherell 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 8.75%. 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 21% 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 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 or the consignor. WITHERELL’S AND THE CONSIGNOR HEREBY DISCLAIM 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, NEITHER WE NOR THE CONSIGNOR ARE 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, 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 OR ANY OF ITS AFFILIATES, DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR CONTRACTORS (COLLECTIVELY, THE “PROTECTED PARTIES”) OR THE CONSIGNOR 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 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.