AUCTION – BUYER TERMS AND CONDITIONS OF SALE

 

1. Buyer’s Agreement.

 

By bidding at auction, the bidder at auction (“Bidder”) agrees that this Buyer’s Conditions of Sale (“Conditions of Sale”), together with the Bottle Description and Absentee Bids, all published by Acker, Merrall & Condit Company (“AMC”), and all incorporated into the Conditions of Sale, constitute Bidder’s entire agreement (the “Agreement”) with AMC and the seller (“Seller”) with respect to the property (“Property”) listed in this catalogue. AMC may amend the Agreement from time to time and at any time before, during and after any auction through posted notices, addenda or errata or through oral salesroom announcements during the sale. By bidding at auction, Bidder agrees to be bound by all terms and conditions of the Agreement.

 

2. AMC As Agent.

 

Except as otherwise stated in the Agreement, AMC acts strictly as agent for the Seller. The Agreement for the sale of all Property is therefore between Seller and the highest Bidder accepted by the auctioneer (“Buyer”). Property is divided into separate groupings as solely determined by AMC and each such grouping (a “Lot”) is subject to a separate bid at auction.

 

3. Before Auction.

 

a) Inspection. Prior to auction, Bidder is expressly advised to physically inspect any Property in which Bidder is interested in bidding and to rely on such inspection, as opposed to descriptions in the catalogue or elsewhere. While AMC attempts to describe all Property with accuracy, AMC shall in no event be liable for any oral or written description of Property, or for any errors or omissions relating thereto. ALL PROPERTY IS SOLD “AS IS.”

 

AMC may seek views of outside experts either before or after the sale on certain Property, which may be marked to indicate that the expert has inspected Property. The auction venue has not selected or inspected any Property to be sold at this auction and disclaims any and all responsibility therefor.

 

b) No Guarantee. In no event whatsoever do Seller or AMC or any of their respective officers, employees or agents make any oral or written express or implied representations, warranties or guarantees as to the merchantability, fitness for a particular use, the correctness of any catalogue description or other description as to the origin, physical condition, quality, rarity, authenticity, attribution, value, estimated value, importance, provenance, exhibition history, potability, historical relevance or bibliographic references concerning any Property.

 

c) Bidder Registration. To bid at this auction, Bidder must complete and sign a registration form and provide identification and proof of age. AMC may also require Bidder to produce bank or other financial references. AMC retains the absolute right to refuse any prospective Bidder admission to, or participation in, any auction.

 

d) Absentee Bidding. Bidders are expressly advised to read the Absentee Bids form which is part of this Agreement. As a courtesy to Bidders neither present at the auction in person nor through an agent or by telephone, AMC will enter written absentee bids delivered to AMC prior to the auction, which may be over the Internet. Absentee bids must be placed in the currency of the place of sale. If AMC receives identical written bids for a particular Lot and these bids are the highest amount for that Lot at auction, such Lot will be sold to the absentee bid first received. The entry of written bids is a free service offered strictly as an accommodation to Bidders and is undertaken by AMC subject to its obligations at the time of auction. Accordingly, AMC is in no event liable for any errors or omissions in executing such written bids or for any failure to execute any such bids.

 

e) Telephone Bidding. Prior to the day of auction, Bidders may make arrangements with AMC to bid at auction by telephone. Telephone bidding is offered as a courtesy to Bidders who cannot be present at the auction in person, by agent, or by written absentee bid. The entry of telephone bids is a free service offered strictly as an accommodation to Bidders and is undertaken by AMC subject to its obligations at the time of auction. Accordingly, AMC is in no event liable for any errors or omissions in executing such telephone bids or for any failure to execute any such bids.

 

4. At Auction.

 

a) Catalogues. Bidders are expressly advised to read the Bottle Description form which is part of this Agreement. While AMC has attempted to describe each Lot in this catalogue accurately, in no event shall AMC be liable for any description or error or omission in such description. AMC retains the absolute right to amend at any time prior to and during the auction and in any manner any description of any Lot. Classifications in the text are for identification purposes only and are based on standard sources. Each statement contained in this catalogue and each other statement, whether oral or written, and whether made in an advertisement, bill of sale, addendum, notice, announcement or other written or oral communication, is a statement of opinion ONLY and shall not be relied upon by any Bidder. Bidders must make appropriate allowances for natural variations of ullages, conditions of cases, labels, corks and wine. In no event shall AMC accept a return, offer credit for, or adjust the price of any Property after delivery except under the terms stated in Section 5 (d) below. Images appearing in this catalogue or elsewhere are for illustrative and informational purposes only, and may not reveal defects or imperfections in any Lot. Bidders are urged not to rely on images in determining whether to bid on Property, and are strongly encouraged both to review the relevant AMC auction catalogue entry and to personally inspect any Property prior to placing bids.

 

b) Reserve Price. Each Lot is sold subject to a reserve price, which is the minimum price below which the Lot will not be sold. While AMC has the right to raise or lower the reserve price at any time prior to the time the Lot is opened for bidding, under no circumstance shall the reserve price for a Lot exceed the low estimate for that Lot as printed in the catalogue or as amended by oral or posted notices. The reserve price for each Lot is available to prospective Bidders upon request, but AMC shall have no ongoing obligation to notify a prospective Bidder who has been informed of the reserve price if the reserve price has thereafter been changed.

 

c) Estimates. Each Lot in the catalogue is accompanied by a low and high estimate of the selling price, excluding the Buyer’s premium and any taxes. Where possible, estimates are based on past sales of comparable property, and while they are intended as a general guide for prospective Bidders, in no event do they constitute either a representation or a prediction of an actual selling price and should not be relied upon as such. AMC determines estimates in advance of the sale and reserves the right to revise estimates to reflect current market conditions.

 

d) Bidding. Warranties. By bidding at auction, whether in person, through absentee bidding, telephone bidding, Internet bidding or otherwiseBidders represent and warrant that (i) they are at least twenty-one (21) years of age, (ii) they have the legal authority, right, and capacity to buy, receive, possess and otherwise deal in any Lot purchased, and (iii) any bids made by Bidder or on Bidder’s behalf are not pursuant to any anti-competitive agreement and are otherwise in compliance with all applicable laws.

 

i)               Bids per Lot. Unless otherwise announced by the auctioneer, all bids are per Lot in consecutive numerical order as they appear in this catalogue.

 

ii)              Bidding up to but not at the Reserve Price. Subject to the auctioneer’s discretion, bids shall be entered in the order in which they are received. The auctioneer may open bidding on any Lot by placing a bid on behalf of the Seller. The auctioneer may further bid on behalf of the Seller up to but not at or exceeding the amount of the reserve price by placing successive or consecutive bids for the Lot, or by placing bids in response to other Bidders.

 
 

iii)            Bidding by AMC. AMC reserves the right to bid for its own account on any Lot at any auction, subject to the same terms and conditions applicable to all other Bidders and Buyers.

 

iv)             Bidding Not Reaching the Reserve Price. If bidding on a Lot does not reach the reserve price, the auctioneer may remove the Lot from sale. At the time of such removal and before bidding on another Lot begins, the auctioneer shall announce that the removed Lot has been “passed”.

 

v)              Hammer Price. The highest bidder accepted by the auctioneer will be Buyer and the striking of the auctioneer’s hammer marks the acceptance of the final bid as the “hammer price” and the creation of a contract for sale between Seller and Buyer.

 
 
 

vi)             No Liability. In no event shall AMC be liable for any errors in entering any bids or for failure to enter any bids.

 

e) Parcel Lots. In the event the catalogue lists a sequence of Lots carrying the same estimates and consisting of the same type of wine, quantity and bottle size (a “Parcel”), Buyer of the first Lot in such Parcel may, in the discretion of the auctioneer, be granted the option to buy any or all additional Lots in the Parcel for the same hammer price if there is no higher absentee bid on any subsequent Lot within the Parcel. If the option is not exercised on all such Lots, the auctioneer will open bidding on the next unsold Lot and may elect to offer Buyer of that Lot the option to take any or all of the remaining Lots in the Parcel. Bidding shall continue in the same manner until all Lots in the Parcel have been offered and declared sold or unsold by the auctioneer.

 

f) Auctioneer’s Discretion. AMC and/or auctioneer has the sole and absolute discretion to: (i) withdraw any Lot; (ii) divide any Lot; (iii) combine any two or more Lots; (iv) refuse any bid; (v) advance the bidding, including changing the increments, in such a manner as AMC and/or auctioneer may see fit; and (vi) in the event of error or dispute, in order to determine the successful bidder, to continue the bidding, cancel the sale, or reoffer and resell the disputed Lot. Wherever AMC and/or auctioneer exercises its discretion, its decision is final, binding and conclusive in all respects. The acceptance of online bids for lots being offered at live auctions is subject to the discretion of the auctioneer. Online notifications concerning your bid status may be overridden by the auctioneer. As such, even if you receive an online notice stating that your bid has been accepted, please be advised that the auctioneer may determine otherwise, and the auctioneer's decision is final.

 

h) Buyer’s Premium. A Buyer’s premium of changes to this twenty-four percent (24%) shall be added to the hammer price.

 

5. After Auction.

 

a) Payment. When Due. Final invoices are rendered reflecting the final purchase price within seven (7) days following each auction. Buyer may pay each invoice upon receipt, but in any event must pay each invoice within thirty (30) days following the date of auction. All payments received more than thirty-five (35) days after the date of auction will be subject to an interest charge of 1.5% per month until the invoice is paid in full, notwithstanding any other provision of these Conditions of Sale.

 

Method of Payment. Payment of each invoice must be made in United States currency. All checks returned unpaid will be subject to a $100 processing fee. Visa, MasterCard and American Express are accepted for purchases of $15,000 and less. No other credit cards will be accepted. By submitting your credit card to pay for your winning bid and/or by filling out a registration form or Absentee Bids form and providing your credit card details, you thereby authorize AMC or its relevant affiliate to charge the balance of your invoice to your credit card upon the acceptance by AMC of a winning bid by you, and agree that you will pay for the purchase in accordance with the issuing institution’s cardholder agreement.

 

b) Collection of Property. Property purchased at auction shall be made available for pick-up at AMC’s New York City Location. Complimentary pick-up is available by appointment only. Please schedule pick-up by contacting AMC’s Auction Department at 877-ACKER-47 at least one week in advance. Property will not be released until payment in full has been received and funds have cleared. Buyers paying by personal check should allow five (5) business days prior to release of Property.

 

c) Local Delivery. AMC will arrange free delivery within Manhattan. Delivery can usually be made within one (1) week of Buyer’s request at a prearranged time. Payment for delivery charges must be made in advance.

 

d) Multiple Deliveries or Pickups. Any Lot (as such term is defined below in AMC’s Conditions of Sale) that is split into two or more parts for multiple deliveries or pickups shall be subject to a service charge per split, per Lot.

 

e) Storage. Property shall be made available for pick-up once payment is received in full.  If Buyer requires delivery within the United States outside of Manhattan, such delivery arrangements shall Buyer’s sole responsibility.  In such case, custody of purchased Property will be transferred to PEP Logistics, which shall, as agent for Buyer, provide on-site storage for up to thirty (30) days following the auction date to allow delivery arrangements to be made. Any Property for which delivery  arrangements have not been made or which has not otherwise been collected within thirty (30) days following the auction date may be removed to a third-party storage facility by PEP Logistics (or, at PEP Logistics’ election, stored on-site by PEP Logistics), and all packaging, handling, delivery, insuring, and third party storage fees associated with such Property shall be paid in full by Buyer together with any other costs or charges owed by Buyer to PEP Logistics prior to the release of such Property by PEP Logistics. If any Property is not collected from PEP Logistics by Buyer for any reason within ninety (90) days following the auction date then, unless otherwise agreed in writing by PEP Logistics and Buyer, PEP Logistics is authorized by Buyer to take any action it deems appropriate with respect to such Property.  PEP Logistics may, at its election, deem such Property to have been abandoned by Buyer and/or, in addition to the imposition of the costs and charges set forth above and any other rights PEP Logistics may have at law or equity, PEP Logistics shall have the right, at its sole discretion, to re-sell such Property publicly or privately (including at any one or more PEP Logistics auctions or other auctions or in one or more retail sales) at any location and for a price determined by PEP Logistics, and to deduct from the gross proceeds of any such re-sale its legal fees and expenses and other customary costs, expenses and charges including, without limitation, seller’s commission and buyer’s premium (in the case of auction sales), advertising costs, third party sales commissions, and packaging, handling, delivery, insurance and additional third party storage fees.  In no event shall PEP Logistics have any liability to Buyer or any other party for any loss or damage to Property not collected within thirty (30) days following the auction date.     

 

f) Delivery.

 

i)               Buyer is solely responsible for any required delivery of his or her Property within the United States outside of Manhattan and shall assume all obligations for compliance with applicable laws.

 

ii)              If requested by Buyer, subject to applicable laws, PEP Logistics may act as Buyer’s agent in arranging for an appropriate carrier. Deliveries outside of Manhattan will be at Buyer’s expense, and any delivery arrangements made through PEP Logistics within the United States shall be made strictly as agent for the Buyer.  Deliveries shall be made “FOB origin” with risk of loss or damage passing to Buyer in New York when Property is received by the carrier.  Deliveries must be prepaid or freight collect. Deliveries may also be subject to service charges by PEP Logistics. Delivery arrangements can be made once payment has been received in full and funds have been deposited into AMC’s account. Buyers should allow five (5) business days when arranging delivery within the continental United States, and ten (10) business days for jurisdictions outside the continental United States, as well as for international deliveries, which may require customs documentation or special routing attention.

 

iii)            Any loss or damage resulting from delivery of Property via any carrier will be the sole responsibility and at the risk of Buyer and/or carrier. AMC is not responsible for any deterioration, damage or loss to Buyer’s Property occurring while in transit.

 

g) Title and Taxation

 

Title to and ownership of alcoholic beverages passes from Seller to Buyer in New York, and Buyer takes all responsibility for the product being transported from New York to Buyer’s selected destination. Buyer may pick up the product at AMC’s New York City location or its Valley Cottage, NY, warehouse.  Buyer may also make independent delivery arrangements, subject to the terms in Sections 5(e) and 5(f) above.

 

i)               Delivery to permit states. For orders going to states in which AMC is licensed or has a direct-to-consumer shipping permit, title to, and ownership of, the product passes to you in New York, and sales and other applicable taxes will be applied based on the requirements of the destination state. 

 

ii)              Delivery to all other United States locations. Title to and ownership of alcoholic beverages passes to you in New York, and you take all responsibility for the product being transported from New York to your selected destination. You may pick up the product at AMC’s New York City location or its Valley Cottage, NY, warehouse, or make independent delivery arrangements, subject to the terms in Sections 5(e) or 5(f) above. New York State sales tax will be applied in all cases, as AMC is not permitted to deliver into states in which it does not have a direct-to-consumer permit and therefore must deliver the product to you or your agent within New York, notwithstanding any subsequent out-of-state shipping arrangement you may require.

 

iii)            Delivery outside the United States.  Title to alcoholic beverages passes to you in New York. No sales tax will be charged if the Property is relinquished to a freight forwarder or international carrier hired by or on behalf of the Buyer for direct export outside of the United States.     

 

Buyers who are licensed and/or registered resellers and who provide AMC with a properly completed resale certificate may be exempt from sales tax.

 

Some jurisdictions may also impose excise taxes on deliveries of Property into their territory. AMC or PEP Logistics, as Buyer’s agent, may collect such excise taxes from Buyer, where required.

 

h) Representations.

 

i)               Importation and Delivery. AMC makes no representation as to the legal rights of anyone to deliver or import any alcoholic beverages or other goods into any state or jurisdiction. You warrant that you are solely responsible for the transport of the purchased products and for determining the legality and the tax/duty consequences of bringing the products to your chosen destination. By arranging for transportation of the alcoholic beverages, AMC is providing a service to, and acting as, your agent. By utilizing this service from AMC you are representing that you are acting in compliance with your local, state and jurisdiction laws regarding the purchase, transportation and delivery of alcoholic beverages.  You further represent that you are legally entitled to take quantities ordered and that you and the person accepting delivery of the alcoholic beverage products are at least 21 years of age.

 

ii)              Exportation: Property sold at auction may be subject to laws governing exportation from the United States, and AMC makes no representation as to the legal rights of anyone to export alcoholic beverages or other goods into any state or jurisdiction. It shall be Buyer’s sole responsibility to determine – before bidding at auction – whether an export permit or license is required for Buyer’s purchase and to obtain any such required permit or license. The denial of, or delay in obtaining, any such permit or license shall neither justify the rescission of any sale nor any delay in making full payment for the purchase.

  

i) Rescission.

 

i)               AMC’s Limited Guarantee. If, within ninety (90) days after the auction, Buyer of a Lot notifies AMC in writing that such Lot is short or is in unsound condition (e.g., cooked and spoiled), or that any statement made in AMC’s offering materials concerning such Lot is materially incorrect, AMC shall be the sole arbiter, by way of inspection or by such other reasonable means as it sees fit, of the validity of such claim between Buyer and Seller and shall make a final decision binding on Buyer and Seller based on its determination of the validity of such claim. No claim made by Buyer under the preceding sentence shall be addressed by AMC unless all Property in question (i) has the AMC auction sale date reference sticker on its bottle, (ii) is in the same condition in which it was delivered to Buyer, and (iii) has been delivered to and from Buyer and stored under appropriate conditions. Having decided any such claim, AMC may, in good faith, direct that the sale either stand or be rescinded and that the final purchase price be refunded either in whole or in part. By bidding at auction, Bidder agrees for itself and its successors and assigns that (i) it hereby waives any right to make any claim or bring any legal action against AMC resulting from any determination made or failed to be made by AMC under this Paragraph 5 (d), and (ii) in the event that Buyer fails to provide timely and proper notice to AMC under this provision, Buyer shall be deemed to have waived the right to rescission as herein provided.

 

ii)              Rescission available solely to Buyer. The remedy of rescission, if AMC elects to rescind under the circumstances, is available solely to Buyer of Property, who must have remained the sole owner thereof with no transfer of any interest therein to any third party.

 

iii)            Buyer’s Sole Remedy. The refund to Buyer of the purchase price for Property shall be Buyer’s sole remedy for any matter relating to the condition of Property, and such remedy shall be available only if Buyer received such Property from AMC. In no event shall AMC be liable for any indirect, special, punitive, consequential, loss of profit or other damages, including, without limitation, attorneys’ fees and expenses, no matter how arising, and AMC’s maximum liability shall be the amount paid by Buyer (exclusive of all taxes) for any Property that is subject to return as permitted hereby. Seller shall have no other liability of any nature or kind under this Agreement, in tort or otherwise, whether at law or in equity, with respect to this Agreement or the offer, purchase and sale of any wine comprising the purchase and sale of Property.

 

iv)             Different Importers. Although AMC makes an effort to state in the catalogue if a Lot includes wines from different importers, failure to so state is not grounds for rescission of the sale of any Lot. Similarly, any incorrect statement or omission in the catalogue concerning bottles and/or sequence numbers of Property from those producers that number their bottles comprising Property, is not grounds for rescission of the sale of any Lot.

 

v)              Different Vintage and/or Producer. Notwithstanding anything to the contrary contained within these Conditions of Sale, AMC agrees to refund the hammer price to the Buyer of any Property purchased from AMC that is not of the vintage or from the producer as was stated in the catalogue or otherwise represented by AMC, including, but not limited to, Property that is counterfeit, provided that: (i) the Buyer directly purchased the Property from AMC; (ii) the Buyer returns such Property to AMC within ninety (90) days of the date of delivery of such Property to Buyer; and (iii) that Buyer returns such Property in materially the same condition as it was delivered to Buyer.

 

j) Default by Buyer. If Buyer fails to make payment in accordance with the Conditions of Sale within one hundred and five (105) days following the auction, AMC may, in its absolute discretion:

 

i)               Cancel the sale;

 

ii)              Resell Property publicly or privately for Buyer’s account and at Buyer’s risk and charge Buyer for any deficiency between the final bid in the resale and the final bid placed by Buyer, in addition to all costs and expenses of both the initial sale and the resale at AMC’s regular rates and the Buyer’s premium due in connection with the initial sale;

 

iii)            Set off all sums due from Buyer against any amounts which AMC may owe to Buyer;

 

iv)             Exercise all the rights and remedies of a party holding a first priority perfected security interest in any Property or other property in AMC’s possession owned or consigned by Buyer;

 

v)              Collect from Buyer the total amount due plus any loss, cost or expense incurred by AMC in effecting such collection;

 

vi)             Charge Buyer interest at the rate of eighteen percent (18%) per annum on all sums due from Buyer;

 

vii)           Collect from Buyer the fees, expenses, and disbursements of legal counsel to AMC incurred in exercising any one or more of the rights or remedies set forth in this Agreement;

 

viii)          Not permit Buyer directly or indirectly to participate in future AMC auctions;

 

ix)             Exercise any right or remedy against Buyer available to Seller; and

 

x)              Assert any other rights or remedies available at law or in equity.

 

AMC may, in its discretion, exercise any one or more of the preceding remedies or any combination thereof.

 

 

k) Buyer’s Indemnity. Buyer shall indemnify, defend, and hold AMC and PEP Logistics, and their officers, directors, employees, and agents, harmless from any loss, expense (including attorneys’ fees and expenses, which shall be paid in advance), liability, costs, or damages incurred by reason of (i) any breach or alleged breach of any warranty herein or breach of this Agreement by Buyer, (ii) any inaccuracy of any certificate, document or instrument delivered by Buyer pursuant to or in connection with this Agreement, and (iii) any act or omission of Buyer, its agents or employees, adversely affecting Property. Buyer’s representations, warranties and indemnification will survive completion of the transactions contemplated in this Agreement.

 

h) Copyright. AMC reserves copyright in all images, illustrations and written material produced by or on behalf of AMC, including, without limitation, the content of this catalogue (collectively, “Material”), and in no event may Buyer or any third party use any of Material without AMC’s prior written consent. In no event do either AMC or Seller make any representation or warranty that Buyer will acquire any copyright, reproduction right or any other intellectual property right in any Property.

 

6. General Terms.

 

a) Headings. The section headings in this Conditions of Sale are for convenience of reference only and shall not be considered as substantive parts of this Agreement.

 

b) Entire Agreement. This Agreement (including all instruments incorporated by reference) constitutes the entire agreement between AMC and Buyer pertaining to the subject matter hereof and supersedes any and all prior discussions and agreements between them. This Agreement may not be amended, nor shall any waiver, change, modification, consent, or discharge of any part of this Agreement be granted, except by an instrument in writing executed by both AMC and Buyer. Any failure by AMC to enforce any provision of this Agreement shall not operate as a waiver of such provision.

 

d) No Joint Venture. No provision of this Agreement shall be construed to create any agency, partnership, or other joint enterprise between AMC and Buyer.

 

e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles governing conflicts of law. Buyer, by bidding at auction, whether in person, by agent, by written absentee bid, telephone, Internet, or other means, irrevocably agrees that any legal action may be brought in the United States District Court for the Southern District of New York or in the courts of the State of New York, and Buyer submits to the non-exclusive jurisdiction of each of such courts in personam. Buyer waives any objection which it may now or hereafter have to the laying of venue of any such action brought in the aforesaid courts in the Southern District of New York or New York County.

 

7. License Number.

 

The license number assigned to AMC by the New York Department of Consumer Affairs is 1413658.

 

 

 

CONDITIONS ON THE ABSENTEE BID FORM BELOW CREDIT CARD INFORMATION

 

I understand that if my bid is successful, the purchase price payable will be the sum of the final bid, plus a premium of twenty-four (24%) of the final bid, together with any applicable taxes required to be collected. Please charge all purchases to my credit card account if I do not remit payment by check or wire transfer within thirty (30) business days.

 

Acker, Merrall & Condit Company (“AMC) is authorized to bid on these Lots up to the price listed in the “Bid/$” column. All bids must be received by prior to the start of the auction. Credit card information must be included on this form.

 

AMC does not charge for this confidential bidding service with the understanding that any failure to exercise bids or error in doing so shall not be the responsibility of AMC or its staff.

 

Payment for successful bids must be forwarded upon receipt of invoice.

 

By bidding at auction, Buyer agrees that Buyer has read and agrees to the Buyer’s Conditions of Sale Agreement in this catalogue and the instruments captioned (i) Bottle Description, and (ii) Absentee Bids published by AMC and in effect from time to time, and which are incorporated herein by reference as part of this Agreement, and Buyer agrees that the above shall become the legal, valid, and binding obligation of Buyer, enforceable in accordance with their terms.