BUYLOW WAREHOUSE LLC AUCTION CONSIGNMENT AGREEMENT

LAST UPDATED December 2019

 

OVERVIEW 

These terms apply to the accompanying Consignment Agreement (hereinafter referred to as the “Agreement”) between the consignor, (hereinafter referred to as the “Consignor”, “you”, “your”), and BuyLow Warehouse, LLC (hereinafter referred to as the “Consignee”, “we”, “us”, “our”), acting as agent for the internet online auctioning of each item (hereinafter referred to as the “Property”, “Item”) listed through the website www.buylowwarehouse.com, hereinafter referred to as the “Service”. 

By listing an item on our website, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. 

  1. COMMISSION: Consignee will be the agent for the Consignor and will sell all Property listed through the Service to the highest bidder by public internet online auction at the commission rate of ten percent (10%) of the gross amount of the highest bidder for all Property sold through the service, with a minimum commission rate of one dollar ($1.00). Additionally, there is a zero dollar ($0.00) per lot entry fee. 
  2. CONSIGNEE RESPONSIBILITY, RIGHTS, & LIMITATION OF LIABILITY: 
    1. Consignee will conduct the auction, make all collections and finalize billing details directly connected with the auction. 
    2. Consignee is not obliged to legally enforce payment by any buyer of the property. If Consignee does not receive the payment by the purchaser within 5 days of sale, Consignee may, in its sole discretion, cancel the sale and resell the property.
    3. Consignee does not guarantee the amount realized for the Property at auction will approach, be equal to, or exceed the estimated value whether verbal or written. 
    4. Consignee is not liable for errors or omissions in catalogues or other descriptive material and it is the Consignor’s responsibility to verify for correctness all marketed materials about the Property.
    5. Consignee will incur no liability for the postponement of any auction for any reason. 
    6. Consignee does not guarantee any results for third-party grading or approved conservation work.
    7. Consignee WILL NOT carry any insurance on Consignor’s property while in the possession of Consignee.  Consignor will be liable for any theft, damage, fire damage or vandalism that may occur while on auction premises or while being handled by Consignee. 
    8. If for any reason whatsoever any Property consigned to this auction is unsold, the Consignee’s sole liability shall be to make the Property available for seller to retrieve and the Consignor shall have no further claim.
    9. Consignee reserves the right to exclude any participants from the auction for any reason. 
    10. Consignee will have no liability for any Property damaged during shipping. 
  3. CONSIGNOR’S RESPONSIBILITIES, WARRANTIES, & INDEMNITY: 
    1. Consignor represents and warrants that he has the legal right to consign the property for sale; that there is not, nor will there be, any claim, lien or encumbrance against the property for any reason and that you hold good title to the property, and good title will pass to the buyer upon sale. 
    2. Consignor agrees that the Property is genuine and as described in the Agreement. 
    3. Consignor has fully disclosed to us all information known to you concerning the description of the property, and all of your oral or written representations concerning the property are true and correct.  
    4. Consignor acknowledges and agrees that we may rely upon the accuracy and completeness of the foregoing warranties without conducting any independent verification. 
    5. If warranted, Consignor will pay for any third-party grading fees (NGC or PCGS, for example). 
    6. Consignor agrees to indemnify Consignee against all claims and expenses, including reasonable attorney’s fees arising from the actual or claimed breach of any of the consignor’s warranties or representations herein, which shall survive the completion of a sale of property. 
  4. METHOD OF SALE:
    1. The auction will be governed by the standard auction terms and conditions listed in the Terms of Service, a copy of which can be found at (https://buylowwarehouse.com/350978105/policies/6536036409.html). 
    2. In the event the Property does not reach a reserve amount specified by the Consignor, the Consignor agrees to pay a buy-in fee of zero dollars ($0.00) after the auction. Any property that does not reach the reserve amount or fails to receive a bid will be automatically entered into another auction the next week under the terms set forth in this agreement, or if requested in writing by the Consignor, will be returned to the Consignor at his/her expense unless otherwise specified by the Consignor.  Consignee reserves the right in our sole discretion to decline to enter the Property into a new week’s auction.Consignor may lower or remove the reserve amount at any time but may not raise it unless expressly approved by Consignee. 
    3. Reserves (start bids). Each lot will be sold at auction with reserve (start bid). The reserve amount will be set by the Consignor while entering the item into the Service.
    4. Consignee reserves the right to offer any unsold Property after the auction for up to 2 days but shall not sell the Property for less than the reserve amount.
    5. We shall have complete discretion as to the place(s) and date(s) of sale of the consigned property, the manner in which any sale is conducted and the manner in which items are grouped in selling lots. We reserve the right to group one or more items in each selling lot. 
    6. Name of Seller. With your permission so noted above, we may disclose your name as seller of the property, and have the right to use your real or professional name, photograph or likeness in publicizing any sale in which any or all of the property is offered for sale. 
    7. NEITHER YOU, YOUR PRINCIPAL, IF ANY, NOR ANY OTHER REPRESENTATIVE OR AGENT OF YOU OR YOUR PRINCIPAL SHALL BID FOR THE PROPERTY. If, however, you violate your foregoing commitments and you (or your agent or representative) become the successful bidder on your property, we may either return the property to you in exchange for the commission set forth in Paragraph 1 (including a violation penalty of 15%) on the bid price or sell the property without reserve in order to recover the commission due from such sale as well as the commission due on the sale concluded in violation of this paragraph (including, in each case, a violation penalty of 15%) and all expenses to which we are entitled. 
    8. Completion of Sale. No sale shall be considered complete until the buyer has made final and full payment to us, or, in the event that payment is made by approved business check, after such check has cleared our bank.
  5. UNSOLD PROPERTY: All lots brought in for sale which are not sold hereunder must be picked up by you within fifteen (15) days after we notify you to do so. If requested to ship the Property to you, we will do so at your expense (including the cost of insurance) PLUS a  $15 handling charge. Consignee will have no liability for any Property damaged during shipping back to Consignor. 
  6. PHOTOGRAPHY: Consignee retains the right to photograph for our catalogues or for advertising purposes any article we deem suitable. Consignor grants Consignee the right to reproduce illustrations of Consignor’s property, both before and after the sale, and agree that we retain all copyright rights in any such photographs and complete ownership of any blocks, prints, negatives. transparencies, plates or electronic memory devices for storing images.
  7. LEGAL STATUS: If you are acting as an agent for someone who is not signing this Agreement, initial “AGENT” which will constitute your agreement that you and your principal jointly and severally assume all obligations and liabilities hereunder. If you are signing on behalf of a corporation or other entity, initial “corporation or other entity’’ below, which will constitute your agreement to furnish to us any additional documents we may require to verify such relationship.
  8. SECURITY AGREEMENT: You hereby grant us a security interest in the property being consigned to secure the payment of all sums for which you may become obligated under this Agreement. You also agree to execute any documents we may reasonably request to perfect this security interest. We shall have aIl the rights of a secured party under law.
  9. NEITHER CONSIGNOR, CONSIGNOR’S PRINCIPAL, IF ANY, NOR ANY OTHER REPRESENTATIVE OR AGENT OF CONSIGNOR OR CONSIGNOR’S PRINCIPAL SHALL BID FOR THE PROPERTY. If, however, Consignor violates this commitment and Consignor (or Consignor’s agent or representative) become the successful bidder on your property, Consignee may either return the property to Consignor in exchange for the commission set forth in Paragraph 1 (including a buyer’s premiums of 15%) on the bid price or sell the property without reserve in order to recover the commission due from such sale as well as the commission due on the sale concluded in violation of this paragraph (including, in each case, a buyer’s premium of 15%) and all expenses to which Consignee are entitled.
  10. PACKING & TRANSPORT: All charges and costs for packing and transportation will be at your sole expense and risk. Sometimes a buyer of the Property will pay for the cost of shipping and handling to offset the cost to the Consignor.
  11. SETTLEMENT: Settlement shall take place within 15 banking days after the payment is received, less any commissions, charges, expenses, or fees; provided that no claim has been made against any of the properly or proceeds of sale, and further provided that the buyer has not given to you or us any notice of intent to rescind the sale.
  12. EXPENSES: You agree to reimburse us for all pre-approved sums advanced to third parties for your account. All such amounts are due and payable ten (10) days after the date of billing or we reserve the right to deduct such sums from the proceeds of sale.
  13. RESCISSION: You authorize us to rescind a sale, and accept the return of any property at any time if in our judgment we determine that offering such property for sale may subject us and/or you to liability, including any liability arising from an alleged breach of warranty or other claim relating to any attribution or identification, source of origin, physical condition, quality, rarity, importance, provenance or other information included in any description of the property. In such event, you further authorize us at any time to refund or credit the buyer for the purchase price of the returned property, and if we have already remitted to you any proceeds of the rescinded sale you shall pay us on request an amount equal to the remitted proceeds. We will return the property to you provided your indebtedness to us, if any, is paid in full. The foregoing right of rescission is in no way limited by any limitation on the buyer’s right to seek rescission. In the event a buyer seeks rescission based on an alleged breach of any warranty that corresponds to a warranty made by you under Paragraph 3, you shall be liable for our full commission set forth in Paragraph 1 plus all of our expenses incurred in selling the lot. You also authorize us to assign to the buyer any and all rights we may have against you. You acknowledge and agree that upon our assignment of rights pursuant to the preceding sentence, a buyer seeking rescission will have direct rights against you based on this agreement and you hereby authorize us to release to any buyer seeking rescission your name and such other information as the buyer may request in order to pursue its claim against you. Any liability that we may have as your agent hereunder with respect to consigned property the sale of which is sought to be rescinded by the buyer shall automatically terminate upon our assignment of rights to a rescinding buyer under this paragraph. You hereby expressly waive and release us (and all of our agents and employees) from any joint and/or several liability we may have to any buyer of the consigned property relating to or arising from an alleged defect in the title, condition, quality, description, attribution or identification of the consigned property or an alleged breach of any warranty that corresponds to a warranty made by you under Paragraph 3.
  14. BUYER RETURN: Claims by buyers: if, within 30 days from the auction close, the buyer of any property demonstrates to Consignee’s satisfaction that the property purchased is not authentic or is materially different from its catalogue description or other Consignee’s representations, Consignee may, in its sole discretion, delay payment to the consignor (if not yet paid to the consignor), rescind the sale, and refund the full purchase price to the buyer. If the consignor has been paid, consignor will remit to Consignee the proceeds previously received for the rescinded sale. 
  15. WITHDRAWL BY SELLER: Consignor hereby waives the right to withdraw the property from the sale prior to the Property’s final completion of the auction event if either of the below circumstances are true.  Consignor will pay Consignee $100 per item (withdraw penalty) if Consignor chooses to withdraw the Property after one of these criteria is met with the Consignee’s permission. We shall release the consigned property to you upon receipt of all funds due us.
    1. The Property has had a bid placed on it in the auction, OR
    2. is under the possession of Consignee. 
  16. RIGHT TO WITHDRAW PROPERTY FROM SALE: We reserve the right to withdraw any property at any time before sale if in our judgment (1) there is doubt as to its attribution or authenticity, or (2) your representations to us concerning the property are inaccurate in any respect, or (3) you have breached or we reasonably believe you are about to breach any provision of the Agreement or (4) for other good reason. In the case of any such withdrawal you shall pay us a $100 withdraw penalty in addition to any other fees or expenses incurred, including attorney fees. 
  17. BUYER’S DEFAULT: In the event of non-payment by a buyer, you authorize us in our discretion as your agent, to either: cancel the sale and return the property to you or resell any such property at auction or privately and, as your agent, to employ such means, including legal process, compromise or settlement in our own and/or your name to recover any sums to which you or we may be lawfully entitled. After deducting from any sums recovered our commission (including a buyer’s premium of 15%) and aIl other sums owing to us hereunder, including, without limitation, costs and expenses (including attorneys’ fees) incurred by us in connection with the consigned property or our actions pursuant to the foregoing sentence, we shall allocate any remaining sums recovered as appropriate.
  18. MISCELLANEOUS: This Agreement and any and all schedules or attachments hereto, including a Security Agreement and any written representations by you concerning the consigned property constitutes the entire agreement between you and us with respect to the property and supersedes all prior negotiations or agreements, oral or written, regarding the consigned property. Except as otherwise specified herein, no modifications or amendments of this Agreement shall be binding unless contained in a writing signed by the party to be bound thereby. Any notice given hereunder must be in writing and shall be deigned effective upon deposit in the U.S. mail, postage prepaid, if addressed to either of the parties at their respective addresses indicated above. If any part of this Agreement is deemed invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of this Agreement which shall remain in full force and effect. 
  19. Governing Law and Class Action/Jury Trial Waiver
    1. Governing Law; Exclusive Jurisdiction and Venue
      1. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF TENNESSEE AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID STATE AND SHALL BE BINDING UPON THE PARTIES, AND THEIR HEIRS, EXECUTORS, BENEFICIARIES, SUCCESSORS, AND ASSIGNS. Each of Consignee and Consignor (a) hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Tennessee, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement, and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.
    2. Class Action/Jury Trial Waiver
      1. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, CONSIGNOR AND CONSIGNEE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
  20. All questions can be directed to: Support@buylowwarehouse.com