Inaugural Music Auction

TERMS & CONDITIONS These Bidder Terms & Conditions (the “Terms”), amended by any published notice, whether posted, printed, or verbal, constitute the entire terms and conditions on which items in this sale will be offered and/or sold by Eaton & Brennan Auctions, LLC (the “Company”), on behalf of any consignor of such items for whom we act as an agent, to you as a bidder (hereinafter “Bidder(s),” “you” or “your”). By bidding at an Auction (“Auction”) provided by the Company directly through its affiliate websites, or through another online auction provider on behalf of the Company (“Services”), you are expressly agreeing to these Terms. Further, by bidding, you become party to a negotiation and expressly agree that if you are the highest Bidder, and the item or lot of items is declared sold, a contract for sale and purchase is created under the laws of the State of New Hampshire. If any future changes to these Terms are unacceptable to you, you should discontinue using our Services and not bid on any item(s) or lot of item(s) auctioned or offered for sale by the Company or through another online Auction offered on behalf of the Company. Your continued use of the Services now, or following the posting of notice of any such changes, will indicate your acceptance of these Terms and of any such changes. 1) Bidding (a) Bidders are required to register to bid and receive a paddle number prior to bidding. As part of the Bidder registration process, each Bidder must attest that they have received, read, and understand these Terms. If you have any questions regarding these Terms, please ask during the registration process or email us at bid@eatonbrennanauctions.com. (b) By bidding at an Auction, a Bidder is creating a contract, enforceable under the laws of the State of New Hampshire in the United States of America. Bidding on an item will be considered sufficient evidence that the Bidder accepts all conditions set forth in these Terms and any conditions outlined on the day of the sale. Any individual bidding on behalf of, or as an agent of another individual or company, whether such agency is disclosed, and whether the identity of the Principal (defined below) is disclosed, may be jointly and severally liable, along with the Principal, under any contract created by the acceptance of a bid. “Principal” shall mean the individual or company who authorizes an agent to act on his, her, or its behalf. (c) The Auctioneer has the authority to accept or reject any and all bids. The “Auctioneer” shall mean the person who conducts or is responsible for a sale by Auction; the person may or may not actually call or cry the Auction. All bidding is in terms of United States Dollars. The Auctioneer determines who the highest Bidder is. In the event of a “tie-bid,” the Auctioneer may re-open the item between the tie Bidders. The Auctioneer’s decisions are final. A tie-bid occurs where, at the close of sale by action, more than one registered Bidder has submitted a high bid in the same amount. (d) Each bidder should base their bid on their own examination of the item(s) and independent investigation, rather than relying on any representations in the Catalog, online, or elsewhere. The bidder confirms that any statements made by Eaton & Brennan Auctions regarding the item are considered purely as opinions, and the bidder is responsible for their own inspection and independent evaluation of the goods. The bidder is not depending on any description or statements by Eaton & Brennan Auctions (including those related to quality, authenticity, provenance, ownership, existing liens, legality, or value) when deciding to bid on or purchase an item. In any purchase or sale, the value of the item(s) is determined by the price. The bidder hereby accepts all risks associated with any and all purchases to the fullest extent as allowed by applicable law. (e) Bidding Rules: Our auction is governed by a “10 Minute Rule” For lots that have been opened and remain active after 8 pm EST/EDT, bidding continues until 10 minutes pass without a bid being placed on that particular lot. This is known as the "10 Minute Rule." Importantly, the 10 Minute Rule applies individually to each lot in the Auction based on bidding activity after 8 pm EST/EDT. The 10-Minute timer resets every time a bid is placed after 8 pm EST/EDT, but raising a maximum bid will not reset the timer if a Bidder is the highest bidder; lots that have not received a bid by 8 PM EST/EDT, will close (staggered by 30 seconds) beginning with the earliest lot and closing with the final lot in the auction that has not yet received a bid. Please be aware that Eaton & Brennan Auctions retains the discretion to close the Auction at any time, as it deems fit. 2) Payment ALL items invoiced to Bidder must be paid for in full prior to Bidder receiving ANY of the items from any Successful Bid. (a) All invoices must be paid in full within seven (7) calendar days of a Successful Bid. Acceptable forms of payment will be: cash in United States Dollars; Visa, MasterCard, and Discover credit cards; wire transfer; Paypal; cashier’s check; or personal check. Items paid for by personal check or cashier’s check will be held by the Company for ten (10) banking days before being released to the Bidder or designated shipping company. If payment is made by credit card or Paypal there will be an additional 3% charge onto the invoice. For LiveAuctioneers bidders, payment in full is due within seventy-two (72) hours of the invoice date. If payment is not made within 72 hours of the date of the invoice, LiveAuctioneers will charge the buyer's credit card on file. (b) There will be a $50 charge assessed for any bounced checks. Bidders grants the Company and the consignor(s) a security interest in the property in any Successful Bid by a Bidder. The Company may retain as collateral security for the Bidder’s obligations to the Company, all items identified on the Bidder’s invoice(s), along with any payment(s) received from the Bidder, and any other item(s) the Company may possess, belonging to the Bidder, until such time that the Bidder’s obligations for payment to the Company are satisfied. (c) The Company, and the consignor(s), retain all rights as a secured party under the laws of the State of New Hampshire. (d) By registering and bidding at an Auction, you agree that if on the seventh (7th) calendar day following a Successful Bid your invoice(s) is or are found to be unpaid or that payment is late, you specifically authorize the Company to charge the credit card that you used as a registration deposit, in a single transaction or in multiple transactions, until the balance owed to the Company is paid in full, at the full Buyer’s Premium rate, regardless of any arrangement made to pay otherwise. (e) Any invoice remaining open after seven (7) calendar days of an Auction will be charged interest at a rate no less than (i) 1.5% per month, or (ii) available under present law, beginning on the seventh (7th) calendar day until such invoice is paid in full. (f) If any invoice is not fully paid 30 calendar days following the date when the Bidder successfully bid on an item, the company is entitled to: (i) cancel the sale of the lot or lots. The lots will be subject to resale or return to original Consignor. (ii) charge you late fees in accordance with the interest rate detailed above in Section 2 (e). 3) Buyer’s Premium and Fees A twenty percent (20%) “Buyer’s Premium” will be charged on all purchases (a successful bid accepted by auctioneer; hereinafter “Successful Bid(s)“). Please note, online transactions on Live Auctioneers and Invaluable are subject to an additional five percent (5%) processing fee. 25% Buyer’s Premium – Online bidders on Live Auctioneers 20% Buyer’s Premium – Online, Telephone, or absentee bidders 3% fee will be charged for using a credit card for payments. 4) Sales Tax Eaton & Brennan Auctions is an online seller, and as part of our compliance with tax regulations, we must collect Sales/Use Tax from our buyers. The specific requirements for establishing a tax presence, or nexus, vary from state to state. We will handle the collection and remittance of sales tax on your behalf as necessary. Please note that if we have not established nexus in a particular state, it remains your responsibility to ensure the payment of sales tax on your purchases. The applicable sales tax rate is determined by the location to which your purchases are shipped, including the state, county, and city. If you choose to personally pick up your purchases at our New Hampshire facility, you will not be obligated to pay sales tax, as the State of New Hampshire does not impose a general sales and use tax. 5) Disclaimer of Warranties; Limitation of Liability (a) Your access to, use of, and reliance on the Services provided by the Company is entirely at your own risk. All sales are final. All Services and items are provided on an “as is” and “where is” basis without any warranties of any kind. (b) Bidder expressly acknowledges and agrees that in no event shall the Company, its employees, agent, and/or Auctioneer(s) be liable for any damages, including, without limitation, any compensatory, incidental, or consequential damage. (c) To the extent permissible by applicable law, the Company and its officers, directors, agents, and employees are not liable for any damages or losses, including but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect or consequential, resulting directly or indirectly from your use of the Services provided by the Company or any successful bid. (d) The Company takes no responsibility and assumes no liability for any communication or transaction that you or any Bidder, seller, or third-party has regarding the Service. You are solely responsible for your use of the Services and any successful bid, and you agree that the Company is only acting as a passive medium for your and other Bidders’ and Sellers’ transactions. (e) Without limiting the foregoing, the Company also disclaims all warranties for or with respect to: (f) The security, reliability, timeliness, accuracy, and performance of the Services and content accessed through the Services as they are provided and conducted online; (g) Computer worms, viruses, spyware, adware, and any other malware, malicious code, or harmful content or components accessed, received, or disseminated through, related to, or as a result of the Services or content accessed through the Services as provided by the company online; (h) any transactions or potential transactions, goods, or Services promised or exchanged, information or advice offered or exchanged, or other content, interactions, representations, or communications through, related to, or as a result of use of the Services or content accessed through the Services as provided by the Company online (including, without limitation, any links on the Company’s website and/or links in content accessed through the Company’s website). (i) By bidding, Bidder agrees to hold the Company, its employees and associates, and the Auctioneer harmless for errors and omissions. Further, Bidder agrees to hold the Company, its employees and associates, and the Auctioneer harmless for issues arising from the transfer of title of goods purchased. (j) In no event will the Company’s aggregate liability, or that or its officers, directors, employees, and agents, arising out of or in connection with these Terms or front he Services or related to any successful bid, or from the use of or inability to use the Services as provided through online or other modes of communication, exceed one hundred dollars ($100), or in the case of a successful bid, the buyer’s premium charged by the Company to the Bidder. The limitations of liability set forth above are fundamental elements of the basis of the bargain between the Company and you. (j) These disclaimers shall apply to the fullest extent permitted by law. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the above disclaimers and limitations may not apply to you. 6) Descriptions and Photographs Item descriptions or photographs are not to be used in lieu of a personal inspection of an item. The Company endeavors to accurately describe all items being sold, but all property is subject to the return policy outlined in this document. Any statement, written or verbal, in the catalog, on a condition report, on an invoice, on a bill of sale, or stated before, during or after the Auction, or written or stated elsewhere, as to physical condition, history or provenance, origin, age, culture, source, measurement, size, weight, fineness, quality, imperfections or damage, authorship or artistry, usefulness, rarity, importance, historical relevance, where an item has been displayed, exhibited, or previously sold, or as to the items value or any other feature of the item, are statements of opinion and not representations or warranties. Please note that catalogue photographs may have had size modifications for display purposes or been trimmed to exclude framing, matting, and wide blank margins. Variations in color may occur due to digital processing. No employee, agent, or Auctioneer of the Company is authorized to make any representation or warranty on behalf of the Company or on behalf of the consignor regarding any item. 7) Item Pickup and Shipping (a) All items are to be shipped by FedEx, after full payment of the invoice. Successful Bids of items online will be shipped at the Bidder’s expense. (b) Costs associated with the shipping and handling of an item are the responsibility of the Bidder. (c) An insurance fee of 1.5% of the invoice total will be added to each invoice to cover shipping insurance. 8) Language The language spoken at the Company is English. In many cases, however, we do try to accommodate the spoken language(s) of Bidders. Although the Company may in certain cases have an employee or employees who speak other languages, the Company is not responsible for errors or damages caused by language, including but not limited to misinterpretations or incorrect pronunciation. By registering to bid and bidding, you attest that you assume full responsibility for all communication and will secure the Services of an interpreter if necessary. 9) Buyer’s Remedies / Conditions for Returns (a) If the Bidder wishes to dispute or contest the authenticity of a lot or item (including claiming it to be incorrect), they must adhere to the following procedure: Within 30 days of the Auction Date, the Bidder must provide Eaton & Brennan Auctions with written evidence that the lot is not authentic, as determined by a recognized expert in the field (as acknowledged by Eaton & Brennan Auctions within its discretion). Additionally, the Bidder must send the physical item or lot in question to Eaton & Brennan Auctions, along with all evidence used to challenge its authenticity. The term "Authenticity" pertains to a significant discrepancy between the description, genuineness, or attribution of the item as represented by Eaton & Brennan Auctions in their online catalog. If Eaton & Brennan Auctions concurs that the lot is not authentic as initially represented (at its sole discretion), the Bidder's exclusive remedy against Eaton & Brennan Auctions (including its affiliates, agents, employees, and contractors) will be a refund of the purchase price paid by the Bidder for the specific item, with no other costs, liabilities, or amounts recoverable by the Bidder. In the event that Eaton & Brennan Auctions does not agree with the Bidder's assertion, the Parties will then follow the dispute resolution procedures outlined in these Conditions of Sale. It is crucial for the Bidder to strictly adhere to the Authenticity Challenge Process as a prerequisite for initiating any legal action (b) If the description of any lot in the Catalog is significantly or substantially incorrect (for example, a major cataloging error), or if there is any other significant material issue related to the item or lot, the item or lot can be returned if it is sent back within seven (7) calendar days of receipt and received by Eaton & Brennan Auctions no later than twenty-one (21) calendar days after the Auction Date, along with a written explanation. This paragraph establishes the Bidder's exclusive right concerning the return of items, and no refunds will be granted for items that are not returned to Eaton & Brennan Auctions within the specified time frame or do not significantly deviate from the description. The possibility of a refund is subject to Eaton & Brennan Auctions’s sole discretionary review, and any refund request must be made at the same time as the physical item or lot is returned to Eaton & Brennan Auctions. Failure to return the item within the given timeframe will be considered as the Bidder's acceptance of the item, and it will waive any and all claims related to the item, except in the case of authenticity. 10) Remedies for Non-Payment or Non-Compliance The Company and the consignor(s) reserve the right to use all remedies for non-payment or for non-compliance with these Terms afforded to the Company and the consignor(s) by law. In addition to any such remedy or remedies available to the Company and any consignor, including without limitation the right to hold Bidder liable for the price of the Successful Bid, the Company may, at its sole discretion and option: (a) Compel specific performance and hold Bidder liable for the full invoice price; (b) Cancel the sale, retaining all payments made by the Bidder as liquidated damages and not as a penalty; or (c) Resell any item or lot of items by public or private sale and hold the Bidder liable for all damages, including but not limited to, the difference between the invoice amount and the bid price of the Successful Bid realized when the item(s) are resold, all costs for resale, including our commission at our customary rate, and other damages incurred, including storage costs, sale expenses, and attorney fees. 11) Registration Registration is required to bid at any Company Auction, regardless of whether you are bidding in person, live online, by telephone, as an Absentee Bidder or any other classification of Bidder. (a) This registration includes your name, address, phone number, email address and credit card. Since the act of bidding at an Auction creates a binding contract, the giving of false registration information may constitute an act of fraud. By registering to bid you agree to be added to our email list. You have the option to opt-out after you receive the first email. (b) Online Bidders may expedite their registration by having a valid credit card on file with their online bidding account. Bidders on Live Auctioneers who provide a valid credit card will be automatically enrolled in Auto-Pay, which will result in having their entire invoice charged to their credit card on file 72 hours following the sending of invoices. Bidders wishing to pay by another method within the 7 day payment period may notify the Company that they intend to pay by check, cash, or wire transfer in order to opt out of Autopay. (c) After your registration is processed, staff of the Company will provide you with a Bidder number paddle. This paddle allows you to bid at the Auction for which you are registered. You must register for each Auction in which you would like to bid. 12) Standard Bid Increments All bidding, including absentee, online, and phone bidding, will follow the established “Standard Bid Increments” outlined below. All attempts will be made to strictly follow the Standard Bid Increments. However, the Auctioneer reserves the right to deviate from the Standard Bid Increments, as deemed necessary in his or her sole discretion. If the Bid amount is: The Standard Bid Increment is: $100 – $200 $10 $200 – $500 $25 $500 – $1,000 $50 $1,000 – $5,000 $100 $5,000 – $10,000 $250 $10,000 – $20,000 $500 $20,000 – $50,000 $1,000 $500,000 + $75,000 $2,500 13) Reserve Some items are subject to a “Reserve” or minimum bid, unless otherwise stipulated. The Reserve is the lowest amount the seller is willing to accept for the item(s) or lot. Company personnel, or the Auctioneer, may bid on behalf of the seller up to the Reserve. The Reserve will almost never be higher than the low Auction Estimate, which is the estimated amount, at minimum, of a Successful Bid. 14) Live Bidding Online The Company assumes no liability for damages incurred by the failure or disruption of online Services through any Auction. Once you register with the online bidding Service of your choice, the Company will review your bidding and dispute history before approval. Providing a credit card to the online bidding Service of your choice may expedite the process. Once the registration process is complete, you may then bid online at the Auction for which you have registered. You must register for each Auction in which you would like to bid. If using an online bidding Service, a Bidder must, in addition to accepting and following the Terms herein outlined, accept and follow the Terms & Conditions set forth by the online bidding Service. Following the close of the Auction, Bidders will receive an invoice for any Successful Bid(s), to include the Buyer’s Premium and Sales Tax, which will be due and payable immediately. 15) Removal of Lots from a Sale The Company will make all reasonable efforts to have all items advertised available for sale. However, occasionally an item must be removed from the sale or items must be combined into lots. The Company assumes no liability for damages incurred by the removal of an item from a sale or from lotting items together. 16) Auction Estimates Any Auction Estimate is only an approximation of what the Company believes the item could bring at Auction, based on its experience and sales data from the sale of similar items. Auction Estimates are NOT Appraisals and are not to be used as the value of an item. Auction estimates are subject to revision. 17) Sellers / Consignors Sellers and Consignors are not permitted to bid on their own items nor are they permitted to have an employee or agent bid on their behalf, except when the Company is permitted to bid on behalf of the Seller or Consignor up to the amount of a Reserve. 18) Employees & Associates Employees and associates of the Company are permitted to purchase any item(s) and lot(s) under the same Terms, rules and regulations as the public. 19) Governing Law & Arbitration (a) The existence and interpretation of these Terms shall be governed and construed under the laws of the State of New Hampshire, without regard to its conflicts of law rules. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof shall be exclusively resolved by final and binding arbitration administered by JAMS under its Comprehensive Arbitration Rules then in effect, as modified by the provisions of this Section. (b) The venue for such arbitration shall be Hillsborough County, New Hampshire, or such other location to which both you and the Company may otherwise expressly agree in writing (the “Designated Location”). Arbitration proceedings shall take place before a single arbitrator who shall be a lawyer or former judge. If the parties cannot agree upon the choice of the arbitrator within twenty (20) business days of the date the matter is submitted for arbitration, the parties shall request, and accept, assignment of an arbitrator from JAMS pursuant to its rules. The arbitrator shall have authority to award any remedy or relief that a court of competent jurisdiction sitting in the state encompassing the Designated Location could grant in conformity to applicable law. Any arbitration award shall be accompanied by a written statement containing a summary of the issues in controversy and a description of the award, with explanation of the reasons for the award. The arbitrator’s award shall be final and binding, and judgment may be entered upon such award by any court of competent jurisdiction. (c) You and the Company agree that all arbitration proceedings shall be private and confidential and further agree not to issue any press release or public announcement with respect to any arbitration proceeding or any court action taken to enforce the arbitrator’s award, including, without limitation, the fact that the arbitration or court action is being conducted, or disclose any aspect thereof, including any testimony, discovery and any documents filed in the course of such proceedings, except to the arbitrator and his/her staff, the parties’ attorneys and their staff, any experts retained by the parties, and to the court as necessary to enforce the arbitration award, provided that at the request of either party, the parties shall cooperate in seeking a protective order with respect to any such information disclosed to the court. (d) The foregoing dispute resolution provisions of these Terms shall not prevent the Company from seeking or obtaining preliminary injunctive or other provisional relief from a court of competent jurisdiction as provided in these Terms to preventing irreparable injury, loss or damage pending a final resolution of the dispute, claim or controversy according to such dispute resolution provisions. (e) In any legal action between you and the Company arising from or related to these Terms, the Company shall be entitled to recover its costs and fees, including actual attorney fees, for any claim or matter that it prevails upon, including any fees or costs generated in, relating to and in preparation of litigation or arbitration. All forum fees and expenses in any arbitration, including, without limitation, the arbitrators’ fees, shall be advanced equally by you and the Company; provided, however, that your failure to timely pay your portion of any arbitration fees shall entitle the Company to a default award (if you are the respondent) or dismissal with prejudice (if you are the claimant). 20) Venue Acknowledgment By bidding at this Auction, whether in person or by agent, absentee bid, online, by telephone bid, or other means, the Bidder agrees that the contract created by these conditions of sale is made and performed in Hillsborough County, in the State of New Hampshire, in the United States of America. 21) Assignment These Terms, and any rights granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any attempted transfer or assignment by you in violation hereof shall be null and void. 22) Entire Agreement These Terms constitute the entire agreement between you and the Company and supersede any prior written or oral agreement. There are no third-party beneficiaries to these Terms. Neither these Terms nor any provision hereof may be modified, amended, or waived except by the written agreement of the Company. 23) Interpretation No provision of this Agreement is to be interpreted for or against any party because that party or such party’s legal representative drafted such provision. 24) Severability If any term or other provision, or part of any provision or sentence of these Terms is invalid, illegal, or incapable of being enforced by any rule or law, or public policy, the provision, or any part of it, or sentence, shall be severed from these Terms and all other conditions and provisions shall remain in full force and effect.