Terms of Garantees
Lulushima warrants the authenticity of authorship of each lot contained in this catalogue solely and expressly subject to the terms and conditions set forth below.
1. Definition of Authorship
"Authorship" is defined as the artist, artisan, workshop, designer, school, period, culture, or source of origin, as applicable and indicated in the description of the lot. The warranted information appears in bold print immediately following the individual lot number; no other language in the catalogue is warranted, including any supplemental material which appears below the bold print headings. Lulushima is not responsible for any errors or omissions in any material, which appears below the bold print headings. The description of authorship in this catalogue may be amended by a supplement to the catalogue, or by notices or announcements at the time and place of the auction sale. This catalogue may contain one or more glossaries explaining the terminology used in the catalogue. All terminology used in this catalogue, including the contents of the glossaries, are merely qualified statements or opinions and are not intended or made as warranted statements or representations under these Terms of Guarantee. Lulushima makes no warranties whatsoever, express or implied, with respect to any material in the catalogue, except as set forth in bold print headings following individual lot numbers in this catalogue and subject to the exclusions set forth below.
2. Coverage Under the Guarantee
Subject to the exclusions set forth below in paragraphs 5 and 6, Lulushima warrants the authorship (as that term is defined above) of each lot in this catalogue for a period of five years from the date of the sale of the lot. The guarantee is made only to the original purchaser of record at the auction, and only the registered bidder for the lot at the auction will be considered as the original purchaser. The buyer must give written notice of claim within five years from the date of the auction. Lulushima may require, at its option, to have the purchaser obtain at the purchaser's expense the opinion of two recognized experts (approved by Lulushima) in the field relating to the item in question, before Lulushima determines whether to rescind a sale under the above warranty. Upon request, Lulushima will provide the purchaser with the names of acceptable experts.
3. Non-Assignability
The benefits of this warranty are not assignable and shall be applicable only to the original purchaser of record (i.e., the registered bidder) and not to any subsequent owners (including, without limitation, donees, heirs, successors, beneficiaries or assigns) who have, or may acquire, an interest in any purchased property. The original buyer must have remained the owner of the lot without disposing of any interest in it to any third party.
4. Sole Remedy
The purchaser agrees that in the case of a breach of warranty under these Terms of Guarantee, s/he shall have no remedy other than rescission of the sale and the refund of the original purchase price paid. The original purchase price paid is defined as the amount of the successful bid price, plus the buyer's premium. No rescission and refund will be made unless the item is returned to Lulushima Fine Art Inc. at 2600-4720 Kingsway, Burnaby, BC Canada V5H 4N2, in the same condition as at the time of sale. The remedy of rescission and refund is exclusive and the purchaser waives any other remedy which may be otherwise available in law or equity. Lulushima shall not be liable for any special, consequential or incidental damages incurred or claimed including, without limitation, loss of profits or for interest.
5. Exclusions
This warranty does not apply to:
i. any catalogue description where it was specifically mentioned that there is a conflict of specialist opinion on the authorship of a lot; or
ii. authorship which on the date of sale was in accordance with the then generally accepted opinion of scholars and specialists, despite the subsequent discovery of new information, whether historical or physical, concerning the artist or craftsman, his students, school, workshop or followers; or
iii. the identification of periods or dates of execution which may be proven inaccurate by means of scientific processes not generally accepted for use until after publication of the catalogue, or which were unreasonably expensive or impractical to use at the time of publication of the catalogue.
The term counterfeit is defined as a modern fake or forgery, made less than fifty years ago, and made with the intent to deceive. The authenticity of signatures, monograms, initials or other similar indications of authorship is expressly excluded as a controlling factor in determining whether a work is a counterfeit under the meaning of this Terms of Warranty.
6. Limited Warranty
As stated in paragraph 12 of the Conditions of Sale, neither Lulushima nor its consignor makes any express or implied representations or warranties whatsoever concerning any property in the catalogue, including without limitation, any warranty of merchantability or fitness for a particular purpose, except as specifically and expressly provided in these Terms of Guarantee.
Terms & Conditions
The lots listed in this catalogue will be offered by Lulushima as owner or as agent for consignor subject to the following terms and conditions. Where Lulushima is agent, the contract is between seller and buyer. The following Conditions of Sale constitutes the entire agreement with the purchaser relative to the property listed in this catalogue. By bidding at auction you agree to be bound by these terms:
1. The total purchase price to be paid by purchaser is the amount of the successful bid price plus a premium of 24% on the bid price as auction house premium and 5% on the bid price as platform premium. All purchases regardless of bidding method are subject to appropriate Sales Tax.
2. Lulushima reserves the right to withdraw any lot at any time prior to the commencement of bidding for such lot and shall have no liability whatsoever for such withdrawal.
3. If the auctioneer decides that any opening bid is below the value of the lot offered, the auctioneer may reject that bid and withdraw the lot from sale; and if, having acknowledged an opening bid, he decides that any advance thereafter is insufficient, he may reject that advance. Unless otherwise indicated, all lots are offered subject to a reserve, which is the confidential minimum price below which such lot will not be sold. No reserve will exceed the low estimate of the lot. Reserves are agreed upon with the consignor or, in the absence thereof, in the absolute discretion of Lulushima.
4. The auctioneer may implement the reserve by opening bidding on any lot by placing a bid on behalf of the seller. The auctioneer will not specifically identify bids placed on behalf of the seller. The auctioneer may further bid on behalf of the seller, up to the amount of the reserve, by placing successive or consecutive bids for a lot or by placing bids in response to other bidders. Unless otherwise noted in the catalogue or by an announcement at the auction, Lulushima acts as agent on behalf of the seller and does not permit the seller to bid on his or her own property.
5. Each lot in the catalogue is given a low and high estimate representing that range which, in the opinion of Lulushima, represents a fair and probable auction value. When possible, the estimate is based on previous auction records of comparable property, condition, rarity, quality and provenances. The estimates are often determined several months before a sale and are therefore subject to change upon further research of the property, or to reflect market conditions or currency fluctuations. Estimates are subject to revision. Actual prices realized for items can fall below or above this range. An estimate of the selling price should not be relied on as a statement that this is the price at which the item will sell or its value for any other purpose. Estimates do not include the buyer?s premium. Where ?Estimate on Request? appears, please contact the Specialist Department for further information.
6. Lulushima reserves the right, at our complete discretion, to refuse admission to the premises or participation in any auction and to reject any bid, as well as the right to refuse to acknowledge any bidder. The highest bidder acknowledged by the auctioneer will be the purchaser. The auctioneer has the right at his absolute and sole discretion to advance the bidding in such a manner as he may decide, to withdraw or divide any lot, and to combine any two or more lots. In the event of error or dispute between bidders, or in the event of doubt on our part as to the validity of any bid, whether during or after the sale, the auctioneer has final discretion to determine the successful bidder, to continue the bidding, to cancel the sale, or to reoffer and resell the lot in dispute. If any dispute arises after the sale, the Lulushima sale record shall be conclusive.
7. Title passes upon the fall of the auctioneer?s hammer to the highest acknowledged bidder, subject to the conditions of sale set forth herein. Such bidder there upon assumes full risk and responsibility there for (including, without limitation, liability for or damage to frames and glass covering prints, paintings or other works). Although in our discretion we will execute orders or absentee bids or accept telephone bids as a convenience to clients who are not present at auctions, we are not responsible for any errors or omissions in connection therewith.
8. When making a bid, a bidder is accepting personal liability to pay the purchase price as follows, unless it has been explicitly agreed in writing with Lulushima before the commencement of the sale that the bidder is acting as agent on behalf of an identified third party acceptable to Lulushima, and that Lulushima will look only to the principal for payment.
9. The purchaser agrees to pay Lulushima a handling charge of $35 for any check dishonored by the drawee.
10. In addition to the other remedies available to us by law, we reserve the right to impose a late charge of 1.5% per month of the total purchase price if payment is not made in accordance with the conditions set forth herein. All property must be removed from our premises by the purchaser at their expense not later than 14 business days following its sale and, if it is not removed, Lulushima reserves the right to charge a minimum storage fee of $5 per lot per day or to deliver the property to a public warehouse for storage at the purchaser?s expense, to be released only after payment in full of all removal, storage, handling, insurance and any other costs incurred, together with payment of all other amounts due to us.
11. All lots are sold ?AS IS? and without recourse and neither Lulushima nor its consignor makes any warranties or representations, express or implied, with respect to such lots, except for the limited warranties expressly stated in the Terms of Guarantee section of this catalogue. Prospective buyers are strongly advised to examine personally any property in which they are interested, before the auction takes place, to determine its condition, size, and whether or not it has been repaired or restored.
12. Except as otherwise expressly and specifically provided in the Terms of Guarantee neither Lulushima nor its consignor makes any express or implied warranty or representation of any kind or nature with respect to merchantability, fitness for purpose, correctness of the catalogue or other description of the physical condition, size, quality, rarity, importance, medium, material, genuineness, attribution, provenance, period, culture, source, origin, exhibitions, literature or historical significance of any lot sold. The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging; nor does a reference to particular defects imply the absence of others. References in the catalogue entry or the condition report to damage or restoration are for guidance only and should be evaluated by personal inspection by the bidder or a knowledgeable representative.
13. The Terms of Guarantee are controlling, and no statement, whether written or oral, and whether made in this catalogue, an advertisement, a bill of sale, a salesroom posting or announcement, the remarks of an auctioneer, or otherwise, shall be deemed to create any warranty, representation or assumption of liability. All statements by Lulushima in the catalogue entry for the property or in the condition report, or made orally or in writing elsewhere, are statements of opinion and are not to be relied on as statements of fact. Except as stated in the Terms of Guarantee, neither Lulushima nor the seller is responsible in any way for errors or omissions in the catalogue or any supplemental material. Buyers are responsible for satisfying themselves concerning the condition of the property and the matters referred to in the catalogue entry.
14. Lulushima and its consignor make no warranty or representation, express or implied, that the purchaser will acquire any copyright or reproduction rights to any lot sold. Lulushima expressly reserves the right to reproduce any image of the lots sold in this catalogue.
15. The copyright in all images, illustrations and written material produced by or for Lulushima relating to a lot, including the contents of this catalogue, is, and shall remain at all times, the property of Lulushima and shall not be used by the buyer, nor by anyone else, without our prior written consent.
16. At some auctions there may be a video or digital screen. Errors may occur in its operation and in the quality of the image, and Lulushima does not accept liability for such errors.
17. Any objects offered at this auction which contain materials from a species that is endangered or protected, including, but not limited to, ivory, coral and tortoiseshell, may require a license or certificate prior to exportation from the Canada or an individual province and additional certificates or licenses for importation into another state or country. Some materials may not be exported, imported into other states or countries or resold. It is the purchaser?s responsibility to be aware of applicable laws and regulations and to obtain any required export or import licenses or certificates and any other required documentation.
18. Further, the purchaser shall be responsible for on-time payment of the full purchase price of the lot, even if the obtaining of any such license is denied or delayed.
19. Lulushima assumes no liability for failing to identify materials from endangered or protected species or for incorrectly identifying such materials.
20. Lulushima shall have no liability for any damage to property left on its premises for more than 14 days following the sale.
21. If any applicable conditions herein are not complied with by the purchaser, in addition to other remedies available to us and the consignor by law, including without limitation the right to hold the purchaser liable for the total purchase price, including all fees, charges and expenses more fully set forth herein, we shall be entitled in our absolute discretion to exercise one or more of the following rights or remedies:
a. To charge interest at such rate as we shall reasonably select;
b. To hold the defaulting buyer liable for the total amount due and to commence legal proceedings for its recovery together with interest, legal fees and costs to the fullest extent permitted under applicable law;
c. Cancel the sale of that, or any other lot or lots sold to the defaulting purchaser at the same or any other auction, retaining as liquidated damages all payments made by the purchaser;
d. Resell the property whether at private sale or public auction without reserve, and the purchaser will be liable for any deficiency, cost, including handling charges, the expenses of both sales, our commission on both sales at our regular rate, all other charges due hereunder and incidental damages;
e. To set off the outstanding amount remaining unpaid by the buyer against any amounts which we may owe the buyer in any other transactions;
f. Where several amounts are owed by the buyer to us, in respect of different transactions, to apply any amount paid to discharge any amount owed in respect of any particular transaction, whether or not the buyer so directs;
g. To reject at any future auction any bids made by or on behalf of the buyer or to require a deposit from the buyer before accepting any bids;
h. To take such other actions as we deem necessary or appropriate; or
i. To effect any combination thereof.
22. In addition, a defaulting purchaser will be deemed to have granted and assigned to us a continuing security interest of first priority in, and we may retain as collateral security for such purchaser?s obligations to us, any property or money of or owing to such purchaser in our possession. At our option, payment will not be deemed to have been made in full until we have collected funds represented by checks, or in the case of bank or cashier?s checks, we have confirmed their authenticity. In the event the purchaser fails to pay any or all of the total purchase price for any lot and Lulushima nonetheless elects to pay the consignor any portion of the sale proceeds, the purchaser acknowledges that Lulushima shall have all of the rights of the consignor to pursue the purchaser for any amounts paid to the consignor, whether at law, in equity, or under these Conditions of Sale.
23. If for any cause a purchased lot cannot be delivered in as good condition as at the time of sale, or should any purchased lot be stolen or mis-delivered or lost prior to delivery, Lulushima shall not be liable for any amount in excess of that paid by the purchaser. We are not responsible for the acts or omissions of carriers or packers of purchased lots, whether or not recommended by us. Packing and handling of purchased lots by us is at the entire risk of the purchaser and Lulushima will have no liability for any loss or damage to such items.
24. Employees of Lulushima are not prohibited from bidding on property. In the course of their employment it is possible that they may have access to information not available to the public.
25. Any and all of these conditions may be waived or modified in the sole discretion of Lulushima. The Conditions of Sale, Terms of Guarantee, the glossary, if any, and all other contents of this catalogue are subject to amendment by us by oral
announcements made during the sale.
26. Salesroom notices amend the catalogue description of a lot after our catalogue has gone to press. They are posted in the viewing galleries and salesroom or are announced by the auctioneer. Please take note of them.
27. All measurements and weight are approximate. Lulushima is not responsible for damage of glass covering paintings, drawings, other works or frames and lamp shades regardless of cause.
28. If any part of these Conditions of Sale is found by any court to be invalid, illegal or unenforceable, the balance of the conditions shall continue to be valid to the fullest extent permitted by law.
29. The rights and obligations of the parties with respect to these Conditions of Sale and Terms of Guarantee, as well as the purchaser?s and our respective rights and obligations hereunder, the conduct of the auction and any matters connected with any of the foregoing, shall be governed and interpreted by the laws of British Columbia. By bidding at auction, whether present in person or by agent, by written bid, telephone or other means, the buyer shall be deemed to have submitted, for the benefit of Lulushima, to the exclusive jurisdiction of the federal or provincial courts located in the province of British Columbia and waives any objection to the jurisdiction and venue of any such court.
