1. Property Received for Sale
The consignor hereby consigns to Antiquorum, and Antiquorum accepts on consignment, the property listed on the Consignment Agreement (the “Property”) in order for the Property to be sold by catalogue auction, online auction, silent auction and/or private treaty (i.e. private sale). Antiquorum shall have complete control and the sole discretion as to the timing, method, location, advertising and lot division to use in selling the property.
1.1 Estimates of Value.
Antiquorum shall provide an estimate of the value of the property using such experts, tests and other methods as it deems in its sole discretion to be appropriate under the circumstances. Such estimates are subject to revision by Antiquorum from time to time and are not to be relied on in any way as a prediction of the actual selling price. If deemed appropriate by Antiquorum to do so, the Consignor hereby authorizes Antiquorum to obtain the opinions and/or certificates of third party experts, the cost of which shall be the responsibility of the Consignor. Antiquorum shall have no liability whatsoever relating to estimates of value attributed to the property.
1.2 Sales Subject to Reserve Prices.
To the extent that the Consignor desires a reserve price to be set for the Property, such reserve price must be noted on the Consignment Agreement (the “Reserve Price”). Any such Reserve Price may not exceed Antiquorum’s low estimate of the value of the Property. If the Reserve Price is not bid, Antiquorum may withdraw the Property from the auction sale; provided however, that the Consignor will remain liable to Antiquorum for fees, costs, and other incidental expenses incurred with respect to the withdrawn Property. Consignor authorizes Antiquorum to attempt to sell the withdrawn Property by private treaty at the Reserve Price for a period of up to thirty days after the auction sale at which the Property was withdrawn.
1.3 Sales without Reserve Prices.
Unless a Reserve Price is noted in the Consignment Agreement, (i) in the case of Property accepted for private treaty, Antiquorum may sell such Property for any purchase price that Antiquorum considers in its sole discretion to be suitable, and (ii) in the case of Property accepted for auction sale, Antiquorum shall sell such Property at the knock-down price.
Unless otherwise agreed by Antiquorum in writing, the Consignor will be responsible for the payment to Antiquorum of the following commission:
15% on the first US $10,000 and 10% thereafter on the hammer price per lot sold.
This commission may be charged against amounts received on any sale of Property. If the Reserve Price is raised after the sale catalogue has been published and the item remains unsold at auction, the Consignor will be liable to Antiquorum for both the Consignor’s commission (as specified above) and the buyer’s premium normally charged by Antiquorum on the increased Reserve Price. If the Property is to be returned to the Consignor for any reason (including, without limitation, the rescission of any sale of the Property), this commission will become immediately due and payable and will be calculated based on the Reserve Price or Antiquorum’s low estimate on the condition, at the Consignor’s cost.
1.5 Additional Costs.
The Consignor shall be liable for all additional costs and fees incurred by Antiquorum in connection with the maintenance and preparation of the Property for sale and the sale of the Property including, but not limited to, costs and fees for catalogue illustration, insurance, repairs, restoration, certification, import duties, taxes, and transportation. Watch straps and buckles may be replaced by Antiquorum, depending on the condition, the Consignor’s cost.
Unless otherwise agreed to by the parties in writing, Antiquorum shall insure the Property against insurable risks while in the possession of Antiquorum in an amount equal to the Reserve Price or, if no Reserve Price is set, Antiquorum’s low estimate of the value of the Property. The Consignor’s sole and exclusive remedy against Antiquorum shall be the insurance proceeds and the Consignor agrees that Antiquorum shall not have any liability for any damages, losses, or other amounts which exceed such insured amount. This remedy shall be in lieu of any other remedy which might otherwise be available as a matter of law, and Antiquorum shall not be liable, in whole or in part, for any special, incidental or consequential damages, including, without limitation, loss of profits. The Consignor shall reimburse Antiquorum for the cost of insurance up to one percent of the purchase price of the Property, or, if the Property is unsold, up to one percent of the Reserve Price or, if no Reserve Price is set, Antiquorum’s low estimate of the value of the Property.
1.7 Statement of Account: Payment of Sale Proceeds.
Antiquorum shall prepare a statement detailing the Property that was sold and/or not sold, within 14 days of the date of the auction and/or private treaty. If the statement shows a balance in favor of the Consignor, assuming Antiquorum has received full payment from the purchaser of the Property, then Antiquorum shall pay the balance due to the Consignor within 40 days after the date of the auction and/or private treaty. The Consignor hereby acknowledges that the payment to the Consignor may be delayed when a purchaser requests that certifications be obtained from third party experts and/or in the event of delay settling the purchaser’s account. If the statement shows a balance in favor of Antiquorum, the Consignor shall pay the balance due to Antiquorum within 14 days of the date of the auction and/or private treaty. To the extent that a payment hereunder is to be made in any currency other than US Dollars, such payment shall be calculated using the exchange rate published by Citibank on the day of the auction.
1.8 Withdrawal/Refusal of Property: Unsold Property.
The Consignor may request that the Property be withdrawn from the sale and returned to the Consignor at any time: provided, however, that the Property consigned for auction sale may not be withdrawn under any circumstances within 60 days of the proposed auction sale date. Upon such withdrawal, the Consignor shall be responsible for the commission specified above as well as the buyer’s premium normally charged by Antiquorum (as if the Property had been sold at the Reserve Price) or Antiquorum’s low estimate of the value of the Property (if no Reserve Price is set), together with all other costs, fees and expenses incurred by Antiquorum. Antiquorum reserves the right to in its sole discretion to withdraw the Property from sale at any time or to rescind any sale of the Property if Antiquorum in its sole discretion determines that such sale may subject Antiquorum to liability. If the Consignor has defaulted under any of the terms or conditions of this Agreement, Antiquorum may retain unsold Property until such breach is cured or a settlement with respect to the default is made between Antiquorum and the Consignor. The Consignor will be liable to Antiquorum for any expenses, including, but not limited to handling, insurance, storage, administrative and incidental costs, while the Property is in the possession of Antiquorum. The Consignor is responsible for removing the Property upon the express request of Antiquorum. Unless otherwise agreed in writing by the parties, if the Property is not removed within 30 days after any such request, Antiquorum reserves the right to sell or otherwise dispose of the Property, at its sole discretion, disregarding any reserve or minimum price which may have been originally agreed upon, and to apply the proceeds of any such disposition to amounts owed to Antiquorum by the Consignor. Antiquorum shall retain full copy, reproduction and photographic rights to any pictures taken during any and all processes and transactions, even if the transaction is withdrawn, cancelled, substituted, or changed in any way.
2 Consignor’s Representations and Warranties; Indemnification Obligations
The Consignor unconditionally covenants, represents and warrants (i) that the Consignor holds clear and unencumbered right, title and interest in and to the Property, (ii) that the Consignor will not take any act or permit any act to be taken to transfer, assign, or otherwise encumber or interfere with such right, title and interest until the Property is transferred to a purchaser by Antiquorum or returned to the Consignor in accordance with this Agreement, and (iii) that there are no restrictions on Antiquorum’s right to reproduce and/or disseminate photographs of the Property. The Consignor acknowledges and agrees that Antiquorum will rely upon the accuracy and completeness of the foregoing warranties and that, in addition to Antiquorum, the ultimate purchaser is an intended beneficiary of the foregoing warranties.
2.2 Bidding Practices.
Neither Consignor, its principal, id any, nor any other representative or agent shall bid on the Property. Such bidding is considered shill bidding and is strictly prohibited by Antiquorum and shall be the basis for Antiquorum to immediately terminate this Agreement.
2.3 Truthfulness of Warranties and Representations.
The Consignor warrants the truthfulness of all representations and warranties, whether oral or written, including representations made regarding the quality, condition, ownership, situation, or value of the Property. The Consignor may be required to provide additional information, in writing, regarding the quality, condition, ownership, situation or value of the Property. Antiquorum shall have no liability for any loss caused by the Consignor’s failure to provide any such requested documentation. Consignor acknowledges that he has carefully read the Consignment Agreement, understands the contents thereof, and has signed this Agreement as his own free act and deed.
The Consignor agrees to indemnity and holds harmless Antiquorum against any and all losses, claims, damages, liabilities, and expenses, including reasonable costs for counsel or for others in investigating, preparing, or defending any action or claim, whether or not in connection with litigation in which Antiquorum is a party, as and when incurred, caused by, relating to, based upon, or arising out of a breach of any covenant, representation, or warranty made by the Consignor or the services provided by Antiquorum under this Agreement. Consignor’s warranties, representations and indemnification shall survive the completion of the transactions contemplated by this Agreement.
3. Disclaimer of Duties and Warranties
The Consignor agrees and acknowledges that Antiquorum shall not have any liability (whether direct or indirect, in contract or tort or otherwise) to the Consignor in connection with the engagement of Antiquorum hereunder, except as has been determined by a court of competent jurisdiction to have been caused by Antiquorum’s willful misconduct. The Consignor agrees that Antiquorum has made no covenants, representations or warranties to the Consignor except as expressly provided for in this Agreement.
If so indicated on the Consignment Agreement, Antiquorum has agreed to advance funds to the Consignor. Antiquorum’s advance of the amount stated on the Consignment Agreement (the “Principal Amount”) shall constitute a loan to the Consignor on which interest shall accrues at a monthly rate of 1.5% and which shall be secured by the collateral described in section 5.2 below in accordance with the terms of this Agreement. The Consignor hereby unconditionally promises to pay to Antiquorum upon demand or upon any sale of the Property, whichever shall occur first, the Principal Amount plus all accrued and unpaid interest and other fees and cost payable under the terms of this Agreement.
5. Pledge and Security Interest
5.1 Consignor’s Liability for Costs, Fees, Expenses.
If the Consignor fails to comply with any of the applicable conditions of this Agreement, the Consignor will be in default and Antiquorum will be entitled to exercise all remedies available to Antiquorum by law, including, without limitation, the right to hold the Consignor liable for al fees, costs, expenses incurred by Antiquorum on behalf of the Consignor.
5.2 Grant of Security Interest.
As security for the full and timely payment by the Consignor to Antiquorum of all funds now of hereafter advanced on the account of the Consignor by Antiquorum and any and all claims which Antiquorum has not or may acquire in the future against the Consignor resulting from their business relations or from any other cause, the Consignor hereby grants Antiquorum a security interest in any and all property which is or shall be in the future remitted by the Consignor to Antiquorum, and all proceeds and products of such Property, additions to such Property and substitutions for such Property. This security interest secures the principle amount of any such claim and also any outstanding or accruing interest. Antiquorum is authorized to file and Consignor agrees to execute, acknowledge and deliver all such other documents as Antiquorum reasonably deems necessary to create, perfect, and continue the security interest in the Property contemplated hereby.
In addition to the cumulative of the other remedies Antiquorum may have, including the rights accorded to a secured party under the New York Uniform Commercial Code (the “UCC”), Antiquorum may, upon the occurrence of any default by the Consignor hereunder, proceed (whether under the UCC or otherwise) as to all or part (as Antiquorum in its sole discretion may elect) of such property, and shall have and may exercise with respect to such property all the rights, remedies, and powers of a secured party (whether under the UCC or otherwise), including, without limitation, the right and power to liquidate the property and any and all part or parts thereof (without regard to any Reserve Price), and to apply the proceeds thereof toward payment of any claim of Antiquorum against the Consignor, in such order and manner as Antiquorum, in its sole discretion, may elect. To the extent permitted by law, the Consignor expressly waives any and all rights and remedies of a debtor and all procedures and formalities prescribed by law relative to the property (and its sale or other disposition) and the exercise of any right or remedy of Antiquorum existing after a default by the Consignor hereunder. So long as any of the obligations of the Consignor remain unpaid or unsatisfied, the Consignor shall not grant a security interest, or otherwise encumber, transfer, convey, consign, assign, pledge, or permit any liens to exist with respect to the Property.
6.1 Entire Agreement.
This Agreement and any and all signed schedules or attachments hereto, including all information submitted by Consignor, and other document(s) executed by the parties concurrently herewith, along with the Conditions of Sale, constitute the entire Agreement between the parties with respect to the Property and supersedes any and all prior negotiations of agreements regarding the Property.
For purposes of this Agreement, faxed signatures shall be deemed original signatures. Electronic signatures or agreed upon alternative electronic confirmation of agreement to any issue, change or addition shall be binding as an original signature as provided by law.
Any notice and communication under this Agreement shall be in writing and shall be given at the address noted on the Consignment Agreement by either (i) hand delivery, (ii) first class mail, (iii) reliable overnight commercial courier, or (iv) telecopy or other means of electronic transmission. Notice given by telecopy or other means of electronic transmission shall be deemed to have been given and received when sent. Notice by overnight courier shall be deemed to have been given and received on the date scheduled for delivery. Notice by mail shall be deemed to have been given and received 3 calendar days after the date first deposited in the United States Mail. Notice by hand delivery shall be deemed to have been given and received upon delivery. A party may change its address by giving written notice to the other party as specified herein.
The Consignor is responsible for the payment of all applicable import and export duties and taxes relating to the Property. The Consignor represents and warrants to have complied with all laws and regulations governing importation and absolves and indemnifies Antiquorum against any liability in this regard.
Except as otherwise specified herein, no modifications or amendment of the Consignment Agreement shall be binding unless contained in writing signed by the party to be bound thereby and no waiver, promise or representation by Antiquorum or any of its agents or representatives shall bind Antiquorum unless contained in a writing signed by Antiquorum.
6.6 Severability of Provisions.
Any provision in this Consignment Agreement that is held to be inoperative, unenforceable, voidable, or invalid in any jurisdiction shall, as to that jurisdiction, be ineffective, unenforceable, void or invalid without affecting the remaining provisions, and to this and the provisions of this Consignment Agreement are declared to be severable.
6.7 Choice of Law/Jurisdiction.
The Consignment Agreement and all issues arising hereunder shall be governed by the internal laws of the State of New York. In any legal proceeding involving directly or indirectly this Agreement, the parties hereto irrevocably submit to the jurisdiction of the courts of the State of New York, County of New York, or the United States District Court for the Southern District of New York and agree not to object to such jurisdiction and venue. Antiquorum, at is sole discretion, may also bring in action against the Consignor in the jurisdiction of the Consignor’s principal residence.