NIB LAMY FOUNTAIN PEN Matte silver and black pen, new. Complete with original box, dust cloth and papers. Pen measuring H 5.75 Box measuring H 1.5 W 8.5 D 3.5 in In great condition. Provenance: Private Chicago Collector No reserve
NIB LAMY FOUNTAIN PEN Matte silver and black pen, new. Complete with original box, dust cloth and papers. Pen measuring H 5.75 Box measuring H 1.5 W 8.5 D 3.5 in In great condition. Provenance: Private Chicago Collector No reserve
1. Introduction
THESE LIVEAUCTIONEERS WEBSITE TERMS AND CONDITIONS OF USE (WITH THE LIVEAUCTIONEERS PRIVACY POLICY AND LIVE.PAYMENTS TERMS & CONDITIONS), TOGETHER WITH ANY EXHIBITS OR ADDENDUMS, PROPOSALS, ORDER FORMS, SERVICE ACTIVATION FORMS, PRICE SCHEDULES, POLICIES, OR OTHER SUPPLEMENTAL DOCUMENTS INCORPORATED HEREIN BY REFERENCE AND PUBLISHED BY LIVEAUCTIONEERS FROM TIME TO TIME CREATE A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN LIVE AUCTIONEERS, LLC AND ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, “LIVEAUCTIONEERS”) AND THE USER OF THE SERVICES AND THE SITE (COLLECTIVELY, “YOU” OR “YOUR”), WITH RESPECT TO YOUR USE OF THE LIVEAUCTIONEERS SERVICES AND THE LIVEAUCTIONEERS SITE. THESE TERMS ARE A LEGAL CONTRACT BETWEEN LIVEAUCTIONEERS AND YOU. BY USING LIVEAUCTIONEERS SERVICES AND ACCESSING THE LIVEAUCTIONEERS SITE, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
YOU SHOULD CAREFULLY READ THIS AGREEMENT AND THE PRIVACY POLICY (THE “PRIVACY POLICY”) AND AGREE TO ALL TERMS BEFORE DOWNLOADING OR USING THE LIVEAUCTIONEERS SERVICES OR ACCESSING THE LIVEAUCTIONEERS SITE.
ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THIS AGREEMENT: (1) ACCEPTING THE TERMS AND CONDITIONS OF USE ELECTRONICALLY DURING THE REGISTRATION OR SIGN-UP PROCESS AND/OR UPON LOGGING ON TO USE THE SERVICES OR (2) USING THE SERVICES AS DESCRIBED HEREIN. THROUGH ANY OF THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.
We strongly recommend that, as you read the Terms, you also access and read all linked information, as well as the listing of Auction Terminology.
LiveAuctioneers may change the terms of this Agreement from time-to-time. If we make any changes to the terms of this Agreement, we will notify you by revising the last updated date at the top of this Agreement, and, though no further notice shall be required, in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on LiveAuctioneers' website(s)). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes. Updated versions of the Agreement will be posted on the LiveAuctioneers web site and changes will be binding on you on the date they are posted as set forth herein. Updated versions of the Agreement will supersede all previous versions of the Agreement as well as any previously agreed upon terms of service to the extent they are inconsistent with the updated Agreement. Accordingly, you are encouraged to periodically review our Terms for any such changes and/or amendments.
2. Definitions
“Auction House” means a seller or dealer of collectibles, antiques, jewelry, fine art, or other Property that has registered with LiveAuctioneers to conduct Live Auctions through the Site.
“Buyer” means the person, authorized agent, or entity (including you) that successfully bids for Property that the Company offers for sale at a Live Auction conducted on the LiveAuctioneers Site.
“LiveAuctioneers Marks” means the LiveAuctioneers' domain names, trademarks, logos, and other branding elements used in furtherance of the LiveAuctioneers Services and/or in the performance of this Agreement.
“LiveAuctioneers Services” or “Services” means the online internet website platform provided by LiveAuctioneers that allows prospective purchasers the ability to access Auction Houses' listings for the sale of Property and to bid for such Property through one or more Live Auctions conducted by an Auction House on the LiveAuctioneers Site.
“LiveAuctioneers Site” or “Site” means the online venue through which prospective purchasers of Property vie and bid on Property listed by Auction Houses.
“Live Auction” means an auction wherein LiveAuctioneers' registered users can bid either through absentee bids or real-time bids through the internet using LiveAuctioneers' technology on Property being auctioned on the floor of an Auction House or in another such live event.
“Live.Payments” means the payment services LiveAuctioneers provides to Auction Houses and Buyers to coordinate and facilitate a Buyer's purchase of Property from the Company in connection with a Live Auction. Access the Live.Payments Terms & Conditions here.
“Property” means the goods and/or services that Auction Houses list for sale through the LiveAuctioneers Site.
3. Access to the Service
Subject to your acceptance of and compliance with this Agreement, LiveAuctioneers grants to you a personal, non-exclusive, non-transferable, revocable, limited, worldwide license to use the Service and associated software and access the Site for your personal non-commercial use. All of LiveAuctioneers' rights and remedies are expressly reserved, and LiveAuctioneers may revoke this limited license, in whole or in part, at any time upon notice. LiveAuctioneers may change, modify, suspend, or discontinue in its entirety or any aspect of the Service at any time. LiveAuctioneers may also impose limits on certain features or restrict or prohibit your access to parts or all of the Service or the Site at any time, all without notice or liability. LiveAuctioneers reserves the right to terminate your access to the Service or the Site without notice if you violate this Agreement or for any reason at LiveAuctioneers' discretion. LiveAuctioneers reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce this Agreement or the Privacy Policy, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues; (d) respond to user support requests; or (e) protect the rights, property or safety of LiveAuctioneers, the Auction Houses, other users of the Site and the public. You are responsible for all actions on the Service by you or by anyone using your password or account, and for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account. You agree not to share your password with any other person or entity, not to re-use your user name and password combination on any other website or service, and agree that you are solely responsible for all actions taken by individuals who use the Service through your password or account. Without limiting the foregoing, it is your sole responsibility to: (i) control the dissemination and use of your user name and password; (ii) authorize, monitor, and control access to and use of your Service account, user name, and password; and (iii) promptly inform LiveAuctioneers of any need to deactivate your user name or password. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and LiveAuctioneers by this Agreement or your use of or access to the Services or the Site.
4. Live Auction Eligibility
Each Auction House that conducts a Live Auction has separate eligibility requirements that must be met for you to participate in that auction. You may be required to apply for and obtain approval from an Auction House or LiveAuctioneers to participate in a specific Live Auction. Approval to participate in one Live Auction does not guarantee approval to participate in any other Live Auction, conducted either by that Auction House, or another Auction House. Each Auction House has sole and absolute discretion to refuse to approve your eligibility for any live auction.
5. Auction House Requirements
The Auction House will list available items on which you may bid. Auction dates and times, as well as the number, character, and order and schedule of the items to be auctioned, are set by the Auction House and are subject to change without notice. Individual lots and items may be modified or changed at any time. Some lots and items that are made available on the auction floor will not be included in the online live auction services. We do not control the information that is provided by the Auction House, which is made available through our system. We also do not guarantee that the Auction House maintains proper auctioneers' licenses or complies with all applicable laws, rules, and regulations. The terms and conditions for participation in each auction, including how bids are accepted, rules governing absentee bids, bid increments, bid retraction and cancellation, the conditions the buyer must meet to purchase an item, as well as the specific conditions of sale (such as warranties, shipping costs, insurance, and the like) may change for each auction at the sole discretion of the Auction House. The Auction House is required to post its terms and conditions and to maintain such terms throughout the auction period. You agree to be bound by those bidding terms and conditions of sale by agreeing to the Terms. The Terms, in addition to those Auction House terms and conditions, governs your bidding activity, as well as your participation in each auction. The Auction House acts as an auctioneer and makes the sole, final determination concerning bidding on the item, the sale of the item, and the resolution of any disputes. All matters relating to a refund or return of won items are also determined by the outlined terms and conditions of the Auction House.
6. LiveAuctioneers is Only a Venue
LiveAuctioneers is not an Auction House and is not conducting Live Auctions. LiveAuctioneers Service allows you to participate in Live Auctions conducted by the Auction House. LiveAuctioneers is solely a passive conduit to facilitate communication between you and the Auction House. LiveAuctioneers reserves the right in our sole and absolute discretion to change some or all of our services at any time. You acknowledge and agree that LiveAuctioneers has no control over the quality, safety, or legality of the items advertised, the truth or accuracy of the listings, or the ability of the Auction House to sell and the ability of buyers to buy items. We also do not ensure or guarantee that a buyer or seller will complete a transaction. Because LiveAuctioneers does not control the Live Auctions or the Auction Houses, if you have a dispute with an Auction House, you hereby expressly release LiveAuctioneers (and our shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venturers, and successors and assigns) from causes of action, suits, claims, demands, judgments, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, such disputes. If you are a California resident, you waive California Civil Code § 1542, as amended from time to time, and any similar statutes, to the extent that such statute(s) prohibits a general release from extending to claims that a creditor does not know or suspect to exist in his/her favor at the time of executing the release, which, if known by the creditor, would materially affect his/her settlement with the debtor. The Site may include links to third-party sites or services, or information about third-party products or services, which are typically subject to service terms and policies that differ from ours. Therefore, you should review the terms of use and privacy policies of all sites and services linked to or referred to by our Service. We do not endorse or take responsibility for these third party offerings, nor do we vet or take responsibility for third-party sites, services or products or for the postings or communications of other users.
7. Compliance with Laws
You acknowledge and agree that the use, purchase, distribution, promotion, advertising, and sale of certain products are subject to federal state, and local regulations, including, but not limited to, firearms, Indian artifacts, recalled products, children's products, alcoholic beverages, coins, and currency. You further acknowledge and agree that LiveAuctioneers' role concerning the sale of products is limited to providing a conduit through which a prospective purchaser can participate in an auction. LiveAuctioneers does not review or evaluate the products auctioned, or verify the descriptions given or claims made, by Auction Houses regarding the products. You expressly represent that you shall comply with all applicable federal, state, and local laws, statutes, ordinances, and regulations relating to your use, purchase, and distribution of any products that you bid upon or purchase through LiveAuctioneers (hereinafter, the "Regulations"), including, but not limited to, (i) the Gun Control Act of 1968 and all regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (collectively, the "Firearms Regulations"), (ii) the Consumer Products Safety Improvement Act of 2008 and all regulations promulgated by the U.S. Consumer Products Safety Commission, and (iii) the Indian Arts & Crafts Act of 1990 and any additional laws and regulations applicable to the sale of Indian arts and crafts. You shall at all times defend, indemnify and hold harmless LiveAuctioneers, its shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venturers, and successors and assigns, from, and against, all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees) of any nature or kind, arising under or resulting from: (i) your use, purchase, or distribution of any products in violation of any Regulations; (ii) your use of LiveAuctioneers in connection with the purchase of any products subject to any Regulations; and (iii) your alleged or actual violation or breach of any Regulations.
8. Using the Site and the Services
- While using LiveAuctioneers, you shall not: (a) violate any laws, rules, regulations or third party rights; (b) use our sites or services if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our sites; (c) fail to deliver payment on any item that you purchased through our sites; (d) manipulate the price of any item or interfere with other user's listings; (e) post false, inaccurate, misleading, defamatory, or libelous content (including personal information); (f) distribute or post spam, chain letters, or pyramid schemes; (g) distribute viruses or any other technologies that may harm LiveAuctioneers, our sites, or the interests or property of LiveAuctioneers' users; (h) copy, modify, or distribute content from our sites and/or violate LiveAuctioneers' copyrights and trademarks; or (i) harvest or otherwise collect information about users, including, without limitation, email addresses, without their consent. Nor shall you encourage or assist any third party to engage in any of the prohibited conduct set forth above. Any violation of this provision shall constitute a material breach of the Terms and, under such circumstances, we will have the right, in our sole and absolute discretion, to prohibit your access to our sites and to suspend or terminate your right to use our services.
- LiveAuctioneers will work to keep our sites and services working properly and safely. Please report problems, offensive content, and any policy violations to us. Without limiting our remedies, it is understood that we may limit, suspend, or terminate our services and user accounts, prohibit access to our sites, delay or remove hosted content, and take technical and legal steps to keep users off our sites if we believe that they are misusing, abusing, or interfering with the provision of our services, engaging in unlawful conduct, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a long time.
- The sites contain robot exclusion headers. Much of the information on the sites is updated on a real-time basis and is proprietary or is licensed to LiveAuctioneers by our users or third parties. You agree that you will not use any robot, spider, scraper, or other automated means to access the sites for any purpose without our express written permission. Additionally, you agree that you will not: (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the sites without the prior, express written consent of LiveAuctioneers and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper working of our sites or any activities conducted on the sites; or (d) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the sites.
- LiveAuctioneers may refer you to a third-party shipping provider for the shipping, handling, and delivery of Property that you purchase from an Auction House during a Live Auction (each, a “Shipping Service”). Your use of the shipping service will be solely governed by the Shipping Service's terms and conditions and privacy policy. You agree that by using a Shipping Service, you will be bound by, and obligated to comply with, such Shipping Service's terms and conditions. You expressly acknowledge and agree that, if you elect to use a Shipping Service, LiveAuctioneers shall not have any liability for, and shall not be a party to, any contract between you and a Shipping Service.
9. Fees & Payments
- Auction House Fees. When you purchase Property from an Auction House during a Live Auction, you agree that, in addition to being bound by the terms of this Agreement, you will be bound by the Auction House's terms and conditions of sale, a copy of which will be provided in the Auction House's listing information for any Property. You further agree to pay all fees to the Auction House according to the Auction House's terms and conditions of sale. Each Auction House may charge a buyer's premium (which is an additional fee that a winning bidder is required to pay above the auction price) as well as shipping, handling, and other fees. These fees are subject to change depending upon the Auction House and the particular item for sale and are set by the Auction House.
- LiveAuctioneers provides you the ability to pay Auction Houses through: (i) third-party payment processors, (ii) LiveAuctioneers invoicing; (iii) Credit and Debit Card Payments and Pre-Authorization; (iv) ACH Payments; and (v) installment payments managed through a third party. By using a third-party service, you may also be subject to an agreement with the third party. You hereby authorize LiveAuctioneers to, without further notice to you, charge any credit or debit card that you maintain on file with LiveAuctioneers in connection with any fees you owe, or to otherwise automatically debit any account which you maintain on file with LiveAuctioneers. If you utilize a credit or debit card to make payment for any fees you owe, LiveAuctioneers or its agent may request preauthorization for a card transaction for validation purposes and/or to ensure there are sufficient funds available in your account. You acknowledge and agree that all payments shall be subject to LiveAuctioneers Live.Payments Terms and Conditions. Please see the Live.Payments Terms and Conditions that describe payments options and obligations in more detail. LiveAuctioneers may require you to separately register for the Live.Payments services.
- LiveAuctioneers may refer you to a third party shipping provider for the shipping, handling, and delivery of Property that you purchase from an Auction House during a Live Auction (each, a "Shipping Service"). Your use of the shipping service will be solely governed by the Shipping Service's terms and conditions and privacy policy. You agree that by using a Shipping Service, you will be bound by, and obligated to comply with, such Shipping Service's terms and conditions. You expressly acknowledge and agree that, if you elect to use a Shipping Service, LiveAuctioneers shall not have any liability for, and shall not be a party to, any contract between you and a Shipping Service.
10. TCPA Consent & Privacy
You hereby expressly authorize LiveAuctioneers, its agents, representatives, and/or affiliates to transmit information to you via SMS message (including text message), email, and/or phone concerning training sessions, auction results, promotional offers, and other matters about your account, as well as products or services in which you may be interested, at such telephone number or electronic address provided by you. LiveAuctioneers may contact you in any manner, including SMS messages (including text messages), email, calls using pre-recorded messages or artificial voice, and calls and messages delivered using an auto telephone dialing system or automatic texting system. You certify, warrant and represents that the telephone number(s) and electronic address(es) provided to LiveAuctioneers is/are your current telephone number(s) and electronic address(es) and that you are permitted to receive calls, SMS messages (including text messages), and emails via the same. You understand that additional carrier charges may apply for SMS/text messages, as determined by your cell phone plan. You agree to promptly notify LiveAuctioneers whenever you stop using a particular telephone number or electronic address. You also acknowledge that LiveAuctioneers may listen to and/or record phone calls between you and LiveAuctioneers without notice to you, as, and when, permitted by applicable law. Notwithstanding anything to the contrary contained herein, you understand that you are not required to provide this authorization as a condition to utilizing the products and services offered by LiveAuctioneers, and further, that you may revoke this authorization, at any time, in a writing properly delivered to LiveAuctioneers. For additional information concerning the Telephone Consumer Protection Act (TCPA), please visit https://www.fcc.gov/general/telemarketing-and-robocalls.
11. Privacy
- Privacy Policy. LiveAuctioneers respects the privacy of visitors and users of the Site and the Services. Any information you provide to us, and any information that we collect from you, and your use of information available on our websites, is governed by our Privacy Policy. Any information you provide to the Auction House or other third parties is governed by their respective privacy policies. We do not sell or rent your personal information to third parties for their marketing purposes without your express consent. We use your information only as described in the LiveAuctioneers Privacy Policy. We consider protection of our users' privacy as a high priority. You acknowledge and agree that the LiveAuctioneers' Privacy Policy, including, but not limited to, the manner in which LiveAuctioneers collects, uses and discloses your personally identifiable information and non-personally identifiable information, is incorporated into and governed by this Agreement. By accepting this Agreement, you agree to all of the terms of the LiveAuctioneers Privacy Policy. You further agree to comply with all applicable laws with respect to all information you may receive from LiveAuctioneers or an Auction House.
- Identify Verification and Fraud Detection. You agree that, as a condition to participating in a Live Auction or otherwise utilizing the Services or accessing the Site, LiveAuctioneers may, prior thereto, and from time to time, obtain and use information about you to verify and authenticate your identity, detect and prevent fraud, as well as for any other lawful purpose, under LiveAuctioneers' Privacy Policy. By accepting the Terms, you authorize LiveAuctioneers and its agent(s) to verify and authenticate the information that you have furnished to LiveAuctioneers and to conduct any other inquiries that we consider, in our sole and absolute discretion, necessary to validate the personal, business, and/or other information that you have or will furnish(ed) to us. You expressly authorize LiveAuctioneers to disclose such information to Ekata, Inc. (“Ekata”) to provide any such identity verification and fraud detection and prevention services on behalf of LiveAuctioneers, and, in furtherance thereof, you acknowledge having reviewed and consented to Ekata's collection and use of such information, as described in its Privacy Notice. For a complete description of how we use and protect your personal information, please review the LiveAuctioneers Privacy Policy. If you object to your information being transferred or used in this way, please do not use our services.
12. Confidential Information
- "Confidential Information" is defined as any confidential or proprietary information of LiveAuctioneers and its suppliers , and any other material disclosed to you by LiveAuctioneers in a writing marked "confidential" or disclosing information that a reasonable person would recognize as confidential business information, or if disclosed orally, identified as confidential at the time of such disclosure. You will hold LiveAuctioneers' Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use LiveAuctioneers' Confidential Information for any purpose other than as required to perform your obligations under this Agreement. Such restrictions will not apply to Confidential Information which (a) is known by you before the date of disclosure, (b) becomes, through no act or fault of the recipient, publicly known, (c) is received by you from a third party without a restriction on disclosure or use, or (d) is independently developed by you without reference to the Confidential Information.
- If you are required or compelled by law or court order to make any disclosure of Confidential Information, you shall provide LiveAuctioneers with prompt written notice of such requirement before such disclosure (to the extent permitted by law) so that LiveAuctioneers may seek a protective order or other appropriate relief. Subject to the foregoing, you may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
13. Intellectual Property/Restrictions on Use
The Services and the Site are protected by copyright, trademark, and other laws of both the United States and other countries. Nothing in this Agreement gives you a right to use the LiveAuctioneers name or any of the LiveAuctioneers Marks or other proprietary rights. All right, title, and interest in and to the Services and the Site, including all intellectual property rights, are and will remain owned exclusively by LiveAuctioneers and its licensors. Any feedback, comments, or suggestions you may provide regarding LiveAuctioneers, the Services, or the Site is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you. We reserve all rights concerning the design and content of our Site. In particular, you may not misappropriate the design or content of our sites and you may not alter or deface such design or content in any way. Nothing on our websites grants any license with respect to such design or content. All trademarks, service marks, trade names, logos, graphics, articles, and other materials on our sites are protected by the United States and foreign copyright, trademark, and other applicable laws. In particular, all trademarks, service marks, trade names, and logos displayed on our sites are proprietary to LiveAuctioneers, its affiliates, or third-party owners and our websites grant no license thereto. You acknowledge that you have read, and will at all times comply with LiveAuctioneers' Intellectual Property statement. All text, images, articles, photographs, illustrations, audio, graphics, graphs, information, links, videos or video clips, and other materials or arrangements of materials uploaded, downloaded or appearing on the Site or available through the Services are provided for your informational purposes only. You are responsible for your use of the Service and for any information you provide, including compliance with applicable laws, rules, and regulations. You should only provide information that you are authorized to share.
14. Indemnity
You agree to defend, indemnify and hold harmless LiveAuctioneers, its shareholders, members, partners, officers, directors, employees, agents, parent company, subsidiaries, affiliates, joint venturers, successors and assigns, and any Auction House, from, and against, any and all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney's fees), arising out of, relating to, or resulting from: (i) any claim of ownership, right to possession, or quality of any of the Property offered or sold by an Auction House; (ii) any actual or alleged breach by you of any promise, covenant, obligation, representation or warranty set forth in this Agreement; (iii) your actual or alleged unlawful actions or conduct, or actual or alleged violation of applicable law, regulation, or the rights of any third party; (iv) any attempted or actual rescission of a purchase made by you or a sale made by an Auction House; (v) the alleged negligence or misuse of the live bidding technology; and (vi) any agreement between you and an Auction House. The foregoing provision shall apply regardless of whether the individual/entity asserting the claim, action, damages, etc. is ultimately able to substantiate the said claim, action, damages, etc.
15. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIVEAUCTIONEERS SITE, THE ONLINE SERVICE, THE LIVEAUCTIONEERS SERVICES, LIVE AUCTIONS, AND ANY OTHER SERVICES PROVIDED BY LIVEAUCTIONEERS OR LIVEAUCTIONEERS' AFFILIATES UNDER THIS AGREEMENT ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LIVEAUCTIONEERS DOES NOT REPRESENT OR WARRANT THAT THE LIVE AUCTIONS, THE LIVEAUCTIONEERS SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LIVE AUCTION, THE LIVEAUCTIONEERS SITE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN SUCH EVENT, YOU ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. LIVEAUCTIONEERS FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL RESPONSIBILITY FOR: (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR THE SITE; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR THE SITE; (III) THE DELETION OF, OR FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT, INFORMATION, AND ANY OTHER COMMUNICATIONS, IN ANY FORMAT OR FORM, MAINTAINED BY THE SERVICE; AND (IV) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. LIVEAUCTIONEERS IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE, OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER'S OR TO ANY OTHER PERSON'S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING CONTENT OR OTHER MATERIALS OR INFORMATION IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OR ON BEHALF OF LIVEAUCTIONEERS OR THROUGH THE SERVICE OR SITE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE IN THIS AGREEMENT.TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LIVEAUCTIONEERS, ITS SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARENT COMPANY, SUBSIDIARIES, AFFILIATES, JOINT VENTURERS, AND SUCCESSORS AND ASSIGNS, BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, DELAYS IN TRAINING, OR MALFUNCTION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF LIVEAUCTIONEERS HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT LIVEAUCTIONEERS IS LIABLE, THE TOTAL AMOUNT OF LIVEAUCTIONEERS' LIABILITY FOR ANY LOSS, COST, CLAIM, OR DAMAGES OF ANY KIND ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE GREATER OF ONE-HUNDRED DOLLARS ($100.00) OR THE AMOUNT OF THE FEES PAID BY YOU TO LIVEAUCTIONEERS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
17. Notices
Any notice, demand, request or other communication which you may desire or be required to give to LiveAuctioneers hereunder shall be in writing and shall be given by certified mail, return receipt requested (with postage prepaid), or by Federal Express or other similar overnight delivery services (with fees prepaid), to LiveAuctioneers, 10 E 38th St, Floor 4, New York, NY 10036, or at any other address that we may designate in writing in the future. Any notice, demand, request, or other communication which we may desire or be required to give to you hereunder shall be in writing and shall be given by email to the email address you provided to LiveAuctioneers during the registration process, or by certified mail, return receipt requested (with postage prepaid), or by Federal Express or other similar overnight delivery services (with fees prepaid), to you at the address you provided to LiveAuctioneers during the registration process. All notices given by e-mail shall be deemed given as of 5:00 P.M. eastern standard time on the business day following the day of transmission. All notices given by mail shall be deemed to have been given three (3) business days after mailing and all notices delivered by overnight delivery service shall be deemed given when delivered.
18. Force Majeure
No party shall be liable for any failure or delay in performing any obligation under the Terms that is due to a Force Majeure event, such as Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, an act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine, employee restrictions, and related measures of any governmental authority. If a Force Majeure event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure event on the performance of the Terms. However, this provision does not excuse your obligation to pay for services received.
19. Dispute Resolution/Mandatory Arbitration
If a dispute, controversy, claim or cause of action arises out of, or in connection with, this Agreement or any breach or alleged breach thereof (the "Dispute"), and if the Dispute cannot be settled through direct discussions, we mutually agree to endeavor first to settle the Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures then in effect (or under any other form of mediation mutually acceptable to the parties involved) before resorting to arbitration. Any unresolved controversy or claim relating to the Dispute shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect (or under any other form of arbitration mutually acceptable to the parties involved), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If all parties to the Dispute agree, a mediator involved in the parties' mediation may be asked to serve as the arbitrator. The mediation and arbitration, if any, shall take place in the City, State, and County of New York (unless another location is mutually agreed to by the parties involved). Any award rendered shall be final and conclusive upon the parties. The costs and expenses of the mediation and arbitration shall be borne equally by the parties, provided, however, that the arbitrator shall award to the prevailing party, if any, the reasonable costs and attorneys' fees incurred by the prevailing party in connection with the mediation and arbitration. If the arbitrator determines that a party was the prevailing party on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the reasonable costs and attorneys' fees incurred by the prevailing party in connection with the mediation and arbitration. In the event this mediation/arbitration provision is found to be unenforceable or inapplicable for any reason, then any dispute, controversy, claim or cause of action arising out of, or in connection with, this Agreement or any breach or alleged breach thereof, shall be brought in the state or federal courts in the City, State, and County of New York, and Company irrevocably consents and submits to the jurisdiction of such courts to litigate any such action and waives trial by jury. The prevailing party in such action shall be entitled to recover its reasonable costs and attorneys' fees incurred in connection therewith, and if it is determined that a party was the prevailing party on some but not all of the claims and counterclaims, such party may be awarded an appropriate percentage of the reasonable costs and attorneys' fees it incurred in connection therewith.
YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT, AND ARE HEREBY WAIVING YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
20. Individual Disputes Only
Notwithstanding the above, the Company and LiveAuctioneers agree that arbitration will be limited to the Dispute between LiveAuctioneers and the Company individually. To the full extent permitted by law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. THE COMPANY AND LIVEAUCTIONEERS AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH THE COMPANY AND LIVEAUCTIONEERS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
21. General
- This Agreement (and all documents and exhibits incorporated by reference herein), constitutes and sets forth the entire agreement and understanding of the parties about the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements, understandings, undertakings, negotiations, promises, discussions, warranties or covenants that are not specifically contained herein. In the event of an inconsistency between the terms of this Agreement and any other document which forms a part of this Agreement, the terms of this Agreement will govern.
- The headings, sections, or titles of the various paragraphs of this Agreement are inserted merely for convenience and do not expressly or by implication or intention, limit, define, extend or affect the meaning or interpretation of this Agreement or the specific terms or text of the section so designated. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural and vice versa, whenever, and as often as may be, appropriate.
- This Agreement shall be governed in all respects, whether as to the validity, construction, interpretation, capacity, performance, or otherwise, by the laws of the State of New York, without regard to principles of conflicts of laws. It is expressly understood and agreed that the United Nations Convention on Contracts for the International Sale of Goods ("CISG") shall not govern or apply to this Agreement, and the parties hereby exclude the application of the CISG.
- If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, then such provision shall be deemed stricken here from and the remainder of this Agreement shall remain at all times in full force and effect. Such invalid or enforceable provision shall, to the extent legally permitted, be replaced by a valid and enforceable provision that comes closest to the parties' intent underlying the invalid or unenforceable provision.
- It is understood that any accrued but unpaid financial obligations, and any other terms related to such financial obligations, shall survive the expiration or termination of this Agreement.
- No waiver of any breach, privilege, or provision of this Agreement will be construed as a waiver of any rights or remedies arising from any other or future breach, privilege, or provision.
- You will not assign or transfer this Agreement, or any of its rights and obligations hereunder, without LiveAuctioneers' prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. However, LiveAuctioneers may, in its sole discretion, assign or otherwise transfer its obligations under this Agreement to a third party.
- The rights and obligations under Sections 1, 2, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21, will survive the termination or expiration of this Agreement, as well as any other rights or obligations that by their nature are intended to survive termination or expiration of this Agreement.
21. Amendments and Future Terms
LiveAuctioneers may amend, modify, add, supplement, or remove any of these terms and conditions at any time, and from time to time. If we do so, we will post such changes on this page. IF ANY FUTURE CHANGES TO THIS AGREEMENT ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND OF ANY SUCH CHANGES.
