Terms and Conditions of Sale
Each Lot in a Blue Skies Auction, Inc. is offered subject to the following Terms and Conditions of Sale ("Terms"), as supplemented in writing or otherwise by us at any time prior to the sale. By Registering to Bid, Bidding, or otherwise purchasing a Lot from Blue Skies Auction, you agree to be bound by these Terms. In these Terms, "we," "us," "our," "Blue Skies Auction" or similar terms mean Blue Skies Auction, Inc. and any of its agents, and "you," "your," "buyer" or similar terms mean a person Bidding on or buying a Lot at a Blue Skies Auction, Private Sale or otherwise through us. Please see Section 9 below for the meanings of capitalized terms or phrases that are not defined elsewhere in these Terms.
1. BIDDING AT AUCTION
To Bid, you must Register to Bid with us in advance of the sale. In addition to our general registration requirements, we reserve the right to require photo identification and bank references.
Assumed Costs and Risks
By Bidding, you understand that any Bid you submit can and may be regarded as the Purchase Price Bid for a particular Lot; accordingly, your Bid constitutes a legally binding agreement to purchase the Lot in accordance with your Bid if accepted by the auctioneer. You agree to assume personal responsibility to pay the Purchase Price Bid, plus the Buyer's Premium and any additional charges that become due and payable in connection with your purchase of a Lot; and that upon the fall of the auctioneer's hammer or other indication by the auctioneer that bidding has closed for a particular Lot, if your last Bid is the Purchase Price Bid, you agree to purchase the Lot and assume all risk of loss and damage to such Lot, in addition to any obligations, costs and expenses relating to its handling, shipping, insurance, taxes and export.
The auctioneer has the right, in his absolute discretion, to determine the conduct of any Blue Skies Auction sale, including, without limitation, to advance the bidding, to reject any Bid offered, to withdraw any lot, to reoffer and resell any lot, and to resolve any dispute in connection with such sale. In any such case, the judgment of the auctioneer is final, and shall be binding upon you and all other participants in such sale.
All Lots may be offered subject to a confidential minimum price below which the Lot will not be sold (the "Reserve"). The auctioneer may open the bidding on any lot below the Reserve by placing a Bid on behalf of the Seller. The auctioneer may continue to Bid on behalf of the Seller up to the amount of the Reserve, either by placing consecutive Bids or by placing Bids in response to other bidders.
2. PAYMENT FOR AND COLLECTION OF PURCHASES
You Pay Buyer Costs
If your Bid results in a Purchase Price Bid, you agree to pay the following charges associated with the purchase of such Lot:
a. Hammer Price (for Auction Sales) or Lot purchase Price (for Private Sales);
b. Buyer's Premium (for Auction Sales); which is 13% of the Hammer Price (or part thereof). No additional % is added to buyer's premium for any lots purchased thru an online bidding platform.
c. any applicable sales tax, late payment charges, storage fees, Enforcement Costs or other costs, damages or charges assessed in accordance with these Terms (for all sales) ((a) - (c) collectively, the "Buyer Costs"). Sales tax will be collected for this auction.
You agree to pay all Buyer Costs immediately following Blue Skies Auction's acceptance of the Purchase Price Bid. All payments must be made in US Dollars, in any of the following acceptable forms of payment:
Visa, MasterCard, Discover or American Express.
Title And Risk Of Loss
Title to a Lot purchased in accordance with these Terms shall not pass to the buyer until Blue Skies Auction has received the Buyer Costs (including clearance of checks). We reserve the right to delay delivery of or otherwise prevent access to any purchased Lot until Blue Skies Auction has received all Buyer Costs. Notwithstanding passage of title, risk of loss to a Lot passes immediately to buyer upon Blue Skies Auction's acceptance of a Purchase Price Bid.
As security for full payment to us of all amounts due from the buyer and prompt collection of your purchased Lots in accordance with these Terms, we retain, and the buyer grants to us, a security interest in any Lot purchased by the buyer in accordance with these Terms (and any proceeds thereof), and in any other property or money of the buyer in our possession or coming into our possession subsequently ("Security Interest"). We may apply any such money or treat any such property in any manner permitted under the Uniform Commercial Code and/or any other applicable law. Upon request, you will sign and promptly return any documents sought by us to protect and confirm our interests including but not limited to a UCC-1 Financing Statement.
Buyer is solely responsible for collection of purchased Lots from the address specified on the invoice, including making arrangements and paying all costs associated with packing and delivery. We may, as a courtesy to the buyer, provide or arrange packing, shipping or similar logistical services, or refer the buyer to third parties who specialize in these services. Any such services referred, provided or arranged by us are at the buyer's sole risk and expense, we assume no responsibility for any act or omission of any party in connection with any such service or reference, and we make no representations or warranties regarding such parties or their services. You expressly release Blue Skies Auction from any and all liability arising from your use of any third-party website or services.
Export, Import and Endangered Species Licenses and Permits
Before bidding for any property, prospective buyers are advised to make their own inquiries as to whether a license is required to export a lot from the United States or to import it into another country. Prospective buyers are advised that some countries prohibit the import of property made of or incorporating plant or animal material, such as coral, crocodile, ivory, whalebone, Brazilian rosewood, rhinoceros horn or tortoiseshell, irrespective of age, percentage or value. Accordingly, prior to bidding, prospective buyers considering export of purchased lots should familiarize themselves with relevant export and import regulations of the countries concerned. It is solely the buyer's responsibility to comply with these laws and to obtain any necessary export, import and endangered species licenses or permits. Failure to obtain a license or permit or delay in so doing will not justify the cancellation of the sale or any delay in making full payment for the lot. As a courtesy to clients, Blue Skies Auction will advise clients who inquire about lots containing potentially regulated plant or animal material, but we do not accept liability for errors or for failing to advise on lots containing protected or regulated species.
Storage, Abandonment And Related Charges
All purchased Lots not collected from the address specified on the invoice, by buyer or buyer's authorized agents within ten (10) days following the Sale Date will become subject to storage fees of not less than $5 per day. A late payment fee equal to 1.5% per month may be assessed on any Buyer Costs remaining unpaid ten (10) days following the Sale Date. If a purchased Lot has not been collected from us within thirty (30) days after the Sale Date, and Blue Skies Auction has not consented to continue to store the Lot, the buyer will be deemed to have defaulted under these Terms, and, in addition to any other remedies we may have at law or equity, we shall be entitled to foreclose on the Security Interest by selling such Lots and using the proceeds from such sale for any purpose (including payment of storage fees and administrative expenses of handling such matter), without any further liability to the buyer. You agree that this remedy is reasonable in light of the costs Blue Skies Auction would have to incur to continue to store and process purchased Lots after sale.
If a buyer fails to make timely payment as required in these Terms, or breaches any other covenant, representation or warranty in this Agreement, we shall be entitled, in our discretion, to exercise any remedies legally available to us, including, but not limited to, the following:
i. cancellation of the sale of the Lot to the non-paying buyer, including the sale of any other Lot to the same buyer (whether or not paid);
ii. reselling the Lot, at public or private sale, with or without reserve;
iii. retention of any amounts already paid by the buyer as a processing fee (which you acknowledge would be reasonable in light of the costs Blue Skies Auction would have to incur to process your breach and attempt to re-auction or resell the Lot);
iv. rejection of any Bids by the buyer at future auctions;
v. setting-off any amounts owed by Blue Skies Auction to the buyer in satisfaction of unpaid amounts; and/or
vi. taking any other action we deem necessary or appropriate under the circumstances.
3. LIMITED WARRANTY
"As Is", "Where Is".
Except as expressly stated below, each Lot is sold "as is" "where is", with no representation or warranty of any kind from any party (including Blue Skies Auction or the consignors of the Lots), express or implied, including warranties of merchantability, fitness for a particular purpose and non-infringement. Because you are responsible for satisfying yourself as to condition or any other matter concerning each purchased Lot, you are advised to personally examine any Lot on which you intend to bid prior to the auction and/or sale. As a courtesy, condition reports for any Lot are provided by Blue Skies Auction prior to the sale, but Blue Skies Auction assumes no responsibility for errors and omissions contained in any such report or other description of a Lot that may be available on the Blue Skies Auction website. Any statements made by Blue Skies Auction with respect to a Lot (whether in a condition report or on the Blue Skies Auction website), whether orally or in writing, are intended as statements of opinion only, are not to be relied upon as statements of fact and do not constitute representations or warranties of any kind.
Limit Of Liability. IN NO EVENT SHALL BLUE SKIES AUCTION BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. WITH RESPECT TO ANY SALE OF A LOT, IN NO EVENT SHALL BLUE SKIES AUCTION BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSSES IN EXCESS OF THE PURCHASE PRICE PAID BY YOU TO BLUE SKIES AUCTION FOR SUCH LOT TO WHICH THE CLAIM RELATES.
4. RESCISSION OR VOIDING OF SALE BY BLUE SKIES AUCTION
If we become aware of an adverse claim of a third party relating to a Lot purchased by you, we may, in our discretion, rescind the sale. Upon notice of our election to rescind a sale, you will promptly return such Lot to us, at which time we will refund to you the Hammer Price and Buyer's Premium paid to us by you for such Lot. This refund will represent your sole remedy against us and/or the consignor in case of a rescission of sale under this paragraph, and you agree to waive all other remedies at law or equity with respect to the same. If you do not return such Lot to us in accordance with this paragraph, you agree to indemnify, defend and hold Blue Skies Auction, its officers, directors, employees, agents and their successors and assigns, harmless from any damages, costs, liabilities or other losses (including attorney's fees) arising as a result of such third party claim.
5. COPYRIGHT NOTICE
Blue Skies Auction and its licensors will retain ownership of our intellectual property rights, including, without limitation, rights to the copyrights and trademarks and other images, logos, text, graphics, icons, audio clips, video clips, digital downloads in, and the "look and feel" of, the Blue Skies Auction website and each Blue Skies Auction Catalogue. You may not obtain any rights of ownership, use, reproduction or any other therein by virtue of these Terms or purchasing a Lot. You may not use any of our trademarks or service marks in any way.
If any provision of these Terms is held by any court to be invalid, illegal or unenforceable, the invalid/illegal/unenforceable aspect of such provision shall be disregarded and the remaining Terms enforced in accordance with the original document and in accordance with applicable law.
7. GOVERNING LAW
These Terms shall be governed by and interpreted in accordance with the law of the State of Indiana and, by Registering to Bid or Bidding in the Blue Skies Auction event (whether personally or by agent), the you agree to submit to the exclusive jurisdiction of the county, state and federal courts located in Howard County, Indiana / Marion County, Indiana in connection with any matter related to these Terms, the Blue Skies Auction event or other sale of a Lot to you by Blue Skies Auction.
In addition to the foregoing, you agree to pay to Blue Skies Auction or Seller on demand the amount of all expenses paid or incurred by Blue Skies Auction and Seller, including attorneys' fees and court costs paid or incurred by Blue Skies Auction or Seller in exercising or enforcing any of its rights hereunder or under applicable law, together with interest on all such amounts at 1.5% per month (the "Enforcement Costs") within thirty (30) days of the buyer's receipt of Blue Skies Auction's invoice for such Enforcement Costs.
The following terms have the following meanings:
Bidding, Bid or place a Bid means a prospective buyer's indication or offer of a price he or she will pay to purchase a Lot at a Blue Skies Auction event which conforms with the provisions of Section 2.
Buyer Costs has the meaning given in Section 3.
Buyer's Premium means the following for any Lot:
(i) 13% of the Hammer Price (or part thereof). No additional % is added to buyer's premium for any lots purchased thru an online bidding platform.
Hammer Price means the price for a Lot established by the last bidder and acknowledged by the auctioneer before dropping the hammer or gavel or otherwise indicating the bidding on such Lot has closed.
Lot means the personal property offered for sale by Blue Skies Auction, whether at a Blue Skies Auction event, Private Sale or otherwise.
Passed Lot is a Lot which does not reach its reserve or otherwise fails to sell at a Blue Skies Auction event.
Private Sale is a non-public, discrete sale of a Lot (such Lot typically not being exhibited by Blue Skies Auction).
Purchase Price Bid means the bid submitted by a Buyer for a Lot which is accepted as the Hammer Price, or in the case of Private Sales, the price accepted by Blue Skies Auction for the sale of such Lot.
Register to Bid or Registering to Bid means providing Blue Skies Auction with your complete, accurate contact information (including address, phone and email) and a current, valid credit card number (including security code), and in the case of online bidders, registration with such authorized third-party online auctioneer service providers described on our website on the How to Bid page.
Reserve has the meaning given in Section 2.
Sale Date means, in the case of Blue Skies Auction events, the date of the closing of bidding for a particular Lot and acceptance of the Purchase Price Bid for such Lot; in the case of all other sales by Blue Skies Auction, the date Blue Skies Auction agrees in writing to sell a Lot to a buyer.
Security Interest has the meaning given in Section 3.
Seller means the owner of a Lot offered for sale at a Blue Skies Auction event, Private Sale or other sale administered by Blue Skies Auction.
Terms has the meaning given in the Introduction to this Agreement.
Blue Skies Auction event means the sale of Lots to the public through competitive bidding administered by Blue Skies Auction (including sales administered through a third-party Internet auctioneer authorized by Blue Skies Auction).