Terms and Conditions

1. Terms and Conditions Generally.

This website (“Website”) is owned by Witherell, a division of BLW Enterprises, Inc., a Nevada corporation (“Witherell”). By accessing or otherwise using this Website you agree to these terms and conditions. These terms and conditions govern the offer and sale of all products (“Products”) on this Website or otherwise involving Witherell. Witherell may revise or update these terms and conditions at any time in its sole and absolute discretion, and in such event the revision or update shall constitute an amendment to these terms and conditions effective as of posting on this Website. You agreed to these terms and conditions by clicking “YES” when you entered this Website. In addition, any person who bids in an auction or accepts a bidder card or bidder number (each, a “Bidder”) confirms and agrees to these terms and conditions.

2. Witherell is an Auction House.

Witherell auctions or otherwise sells Products on behalf of consigning parties (each, a “Consignor”). Witherell does not hold title to Products. Products are purchased by the winning Bidder directly from the Consignor. Witherell acts as facilitator by auctioning and providing related services in connection with the sale of Products. Each Bidder and other users of this Website acknowledges the foregoing. It is acknowledged and agreed that at times Products may be purchased via private sale (i.e., outside of the auction process), and in such event these terms and conditions shall control the transaction (except that the auction provisions shall not apply).

3. Copyright.

Witherell owns the copyright and all images and illustrations in written material produced by or relating to a lot. Witherell’s prior written permission is required for Bidder or Buyer, or any other party, to reproduce or otherwise use such images and illustrations.

4. Condition of Products.

Neither Witherell nor Consignor make any representations or warranties with respect to the condition of Products.

5. Auction Rules.

The auctioneer may establish procedures and supplement these rules during an auction, in the auctioneer’s sole and absolute discretion. The highest qualified Bidder recognized by the auctioneer shall be the winning Bidder. The auctioneer’s decision and declaration of the winning Bidder shall be final and binding upon all Bidders and any other parties. The auctioneer has no obligation to accept any bid and may reject or refuse any bid in its sole and absolute discretion.

At the fall of the hammer or the announcement of “SOLD”, the highest Bidder will have purchased the offered lot and become a “Buyer”. All sales are final at the fall of the hammer or the announcement of “SOLD”. The purchase is subject to all the terms and conditions set forth herein.

The auctioneer reserves the right to withdraw any property from the auction prior to sale. Witherell’s records will be deemed conclusive in all respects in the event there is any dispute after the sale. Witherell reserves the right to rescind the sale in the event of nonpayment, breach of warranty, disputed ownership, or error or omission in receiving bids or providing Product descriptions or other information, in each instance in Witherell’s sole and absolute discretion.

6. Settlement and Payment Terms.

After the conclusion of the auction, Witherell will provide Buyer with an invoice reflecting the “Total Amount Due”, which will include the following:

• Purchase price for the Product(s).
• “Buyer’s Premium” of (i) 20% of the purchase price if paid by cash, check or wire transfer; or (ii) 23% of the purchase price if paid by credit card.
• Sales tax (if applicable) as provided under Section 7 of these terms and conditions.
• Shipping and handling fee as provided under Section 8 of these terms and conditions.
• Insurance premium at the rate of 1.5% of aggregate purchase price (hammer price plus Buyer’s Premium).

You will pay the Total Amount Due to Witherell upon receipt of the invoice. Witherell may rescind any sale upon notice thereof to Buyer in the event Buyer fails to timely pay the full amount set forth in the invoice. Witherell’s election to rescind the sale does not relieve Buyer from its obligation to pay Witherell its fees on the lot (Buyer’s premium and amount of fees owed by Consignor to Witherell if the sale had happened) and any other damages sustained by Witherell or the Consignor. It is acknowledged that Witherell will deduct the amount it is owed from such payment before remitting to Consignor.

Auction sales are strictly for cash, cashier’s check or personal check. Payment by check is in all instances subject to Witherell’s policies and Witherell management may refuse payment in its sole and absolute discretion. Payment by credit card, automated clearing house transfer or wire transfer, or any other means, will only be permitted with the prior approval of Witherell management in its sole and absolute discretion.

Amounts not paid when due will accrue interest at the lesser of 18% per annum or the maximum rate permitted by law until paid in full. Witherell and Consignor shall be entitled to exercise any rights available under applicable law with respect to non-payment by Buyer. Buyer will be responsible for all costs incurred by Witherell and/or Consignor in collecting past due amounts, including reasonable attorney’s fees, court and other collection costs.

Delivery of purchased Products will not be made until Witherell receives full payment of the Total Amount Due, taking into consideration any clearing period that may be required for the method of payment utilized by the Buyer.

7. Sales Tax.

With respect to Products picked up at or shipped to a Nevada location, unless you have a valid reseller’s permit (as determined to the satisfaction of Witherell), you will be required to pay applicable sales tax (state and local).

With respect to Products picked up at or shipped to a location outside of Nevada via recognized parcel carrier (such as FedEx), no sales tax will apply unless at such time Witherell’s economic nexus thresholds for the destination state have been exceeded.

If sales tax is owed, Witherell will collect such sales tax from you prior to shipment and remit it to the applicable state. If the incorrect amount of sales tax is collected at the time of purchase for any reason, you agree to pay Witherell the actual amount of tax due.

8. Shipping and Insurance.

You will pay Witherell the shipping fee specified in the lot description for the purchased Product(s). Witherell will handle packaging and coordination of shipping. Shipping will be provided via FedEx. All shipments are subject to and must comply with the current requirements of FedEx. Witherell reserves the right to utilize a shipper other than FedEx, in which event the shipment will be subject to the requirements of such shipper.

All shipped Products are insured at the rate of 1.5% of aggregate purchase price (hammer price plus Buyer’s Premium).

9. No Rescission or Return Rights.

All Products offered for sale are “as is, where is”. Buyers have no rescission, return or exchange rights. Descriptions of Products or statements referencing condition, authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, exhibition, or any other characteristic, are statements of opinion and not guarantees or representations or warranties. Neither Witherell nor Consignor makes any guarantee or warranty regarding the Product.

Witherell recommends that each Bidder view and inspect (either personally or through an expert) each Product before bidding on it.

10. Storage Charges.

If you do not pick up a purchased Product (personally or through an authorized shipper) within 5 business days of the auction closing, then you will be charged a storage fee at Witherell’s standard rates in effect at such time. You must pay any storage fee prior to delivery of the Product.

11. Dispute Resolution.

It is acknowledged that if Buyer fails to pay the amount it owes as specified in the applicable invoice, then Witherell and Consignor shall be entitled to exercise the remedies set forth herein as well as any other remedies available at law or equity, including but not limited to filing a lawsuit in Douglas County, Nevada. For all other disputes relating to the lots or Products, or otherwise pertaining to these terms and conditions, the parties shall discuss and attempt to resolve the matter. If they are not able to resolve the matter within 30 days, then either party may compel binding arbitration by written notice to the other party. In such event, the matter shall be determined by binding arbitration before a single arbitrator administrated by and conducted under the rules of the American Arbitration Association in Douglas County, Nevada. Each party will pay an equal amount of the arbitration fees and costs. Each Bidder or Buyer in this auction agrees that the election of restricting any and all claims (except non-payment) to arbitration is a voluntary decision and is evidenced by the Bidder or Buyer’s participation in the auction.

12. Warranty Disclaimers.

ALL LOTS AND PRODUCTS ARE SOLD “AS IS”. NEITHER WITHERELL NOR THE CONSIGNOR MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE TITLE, MERCHANTABILITY, FITNESS OR CONDITION OF THE LOTS OR PRODUCTS OR AS TO THE CORRECTNESS OF DESCRIPTION, GENUINENESS, ATTRIBUTION, PROVENANCE OR PERIOD OF THE LOTS OR PRODUCTS OR OTHERWISE RELATING TO THE PRODUCTS. WITHERELL AND CONSIGNOR SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

13. Limitation of Liability.

IN NO EVENT SHALL WITHERELL OR THE CONSIGNOR BE LIABLE FOR ANY COMPENSATORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM LIABILITY OF WITHERELL AND CONSIGNOR (ON A COMBINED BASIS) FOR CLAIMS HEREUNDER OR OTHERWISE RELATING TO THE TRANSACTION SHALL BE LIMITED TO THE AMOUNT PAID BY BUYER FOR THE LOT OR PRODUCTS THAT ARE THE SUBJECT OF SUCH CLAIM.

NEITHER WITHERELL NOR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, OWNERS, MANAGERS, CONTRACTORS, AGENTS OR EMPLOYEES IS RESPONSIBLE FOR ANY ERRORS OF A BIDDER, INCLUDING BUT NOT LIMITED TO THE BIDDER BIDDING ON THE WRONG LOT.

14. General.

These terms and conditions are governed by the laws of the State of Nevada, without regard to conflict of laws principles. Venue for any dispute arising out of these terms and conditions or the offer or sale of the lots or Products shall be in the courts of Douglas County, Nevada. Such venue is exclusive. Each Bidder and Buyer irrevocably consents to such courts having jurisdiction over them. These terms and conditions supersede any prior or contemporaneous documents or discussions with respect to the lots or Products, or otherwise relating to the subject matter set forth herein.