Eldred's - Auctioneers, Appraisers

Contract

ROBERT C. ELDRED CO., INC.
P.O. BOX 796 • 1483 ROUTE 6A • EAST DENNIS, MASSACHUSETTS 02641
(508) 385-3116 • FAX (508) 385-7201 • www.eldreds.com • e-mail: info@eldreds.com


Contract of employment, effective as of ______________________________ by and between


hereafter referred to as seller, and ROBERT C. ELDRED CO., INC. 1483 Main Street, East Dennis, Massachusetts 02641-0796, hereafter referred to as auctioneers.

SECTION ONE
Seller employs auctioneers to sell, at public auction at auctioneers' place of business in East Dennis, Massachusetts, the property described in Schedule A, attached to and by reference incorporated herein and referred to as seller's property. The auction sale shall be held at a time to be determined by the auctioneers in their sole discretion but in no event shall the sale be held more than two (2) years from the date of receipt of the seller's property.

SECTION TWO
Pursuant to the sale of seller's property under this agreement:
(a) The auctioneers shall provide a low/and a high estimate of the seller's property as soon as possible after the receipt of the seller's property. Should the seller disagree with the estimate submitted, the auctioneers may re-estimate the value provided it is notified in writing within seven (7) days of the signing of this agreement or the receipt of estimate whichever shall last occur.
(b) The auctioneers at their sole discretion shall catalog, estimate, advertise and display all property as in their opinion they deem appropriate. Auctioneers shall use customary skill and care in cataloging, estimating, advertising, and display, but make no guarantee or warranty regarding the correctness or accuracy of any estimate or catalog description, or description used in advertising or promotion. The auctioneers shall not be held liable for any such opinion as regards estimate, description or catalog entry regardless of the accuracy of such estimates, description or catalog entries.
(c) Auctioneers shall purchase all risk insurance for seller's property upon delivery by seller to the auctioneers at a cost to the seller of one (1%) percent of the low end estimate of the seller's property. This shall be deducted from the final payment to the seller by the auctioneers or, in the event property is withdrawn or not sold, said cost shall be billed directly to the seller. In the event of a loss, claims will be based upon the low end estimate less commission and insurance charges.
(d) Seller's property will be sold without reserve unless otherwise agreed.
(e) Auctioneers shall conduct the auction sale to the best of their ability. However, auctioneers do not guarantee a sale or if there is a sale the hammer price.
(f) At the completion of the auction sale, auctioneers shall furnish a list of the seller's property sold at the auction sale, along with the hammer price of all sold lots.
(g) Auctioneers shall notify seller of any property remaining unsold at the completion of the auction sale and shall thereafter await the instructions of seller, provided that auctioneers shall receive such instructions within fourteen (14) days. Thereafter, in the event auctioneers receive no such instructions, seller's property may be returned by auctioneers at seller's expense, at the sole risk of seller.
(h) Although auctioneers shall use reasonable and prudent care, auctioneers shall not be responsible for condition of or damages to lamp shades or picture frames.

SECTION THREE
Pursuant to the sale of seller's property under this agreement, auctioneers are empowered to do the following on seller's account:
(a) Auctioneers may sign any memorandum of sale on behalf of and in the name of seller, or in auctioneers’ own names, in connection with the sale of seller's property.
(b) The auctioneers reserve the right to withdraw from sale or to rescind the sale of any lot if in their judgment such a piece has been improperly cataloged or if proper title cannot be assured to the purchaser. A sale may also be rescinded for non-payment by a purchaser.
(c) Auctioneers may employ help reasonably necessary to prepare property for sale and to effectuate sale and delivery of seller's property to buyers.

SECTION FOUR
(a) The seller warrants and represents that the property listed above in Section One is free from encumbrances or liens of third parties and that the seller has full title and right to offer same for sale.
(b) The seller further warrants that he will defend and save harmless the auctioneers from claims upon the property made by third parties.
(c) The seller agrees not to withdraw any property from sale after signing this contract. If at the seller's request the auctioneers elect to return property to the owner, the seller will reimburse the auctioneers for all reasonable costs incurred including but not limited to insurance, shipping, labor, catalog and advertising costs.
(d) Seller shall in all respects cooperate with and further the interests of auctioneers in discharging seller's duties under this agreement as required by any applicable statute or regulation and by this agreement, and shall refrain from all acts that would reasonably tend to interfere with auctioneers in discharging auctioneers’ duties under this agreement or as required by law.

SECTION FIVE
(a) In consideration of performance of this agreement auctioneers shall receive, and seller shall pay _____ ( ___%) percent of the hammer price realized from sale of seller's property. There shall be a minimum charge of twenty ($20.00) Dollars per catalog lot.
(b) Within thirty (30) days of the sale of all or any part of the property, auctioneers will remit an accounting to the seller enumerating the property that has been sold and the hammer price realized for each lot. Seller will be paid within thirty (30) days of auctioneers' receipt of payment from the buyer.
(c) In cases of nonpayment for merchandise, auctioneers reserve the right to cancel the sale or to pursue legal remedies at its discretion.
(d) If payment has been made to the seller on a sale that has been cancelled under Section 3(b), the seller shall forthwith return any monies already paid by the auctioneers upon notification of said cancellation of sale.
(e) Seller acknowledges and agrees that the auctioneers may charge a buyer's premium on the hammer price of all property sold. Such premium will be retained by the auctioneers.

SECTION SIX
This agreement, and all suits and special proceedings hereunder, shall be construed in accordance with and under and pursuant to the laws of the Commonwealth of Massachusetts, and in any action, special proceeding, or any other proceeding that may be brought arising out of, in connection with, or by reason of this agreement, the laws of the Commonwealth of Massachusetts shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any such action or special proceeding may be instituted. Any dispute arising out of or under this contract, or in any way related to the agreement between the parties, shall be brought in the courts of Barnstable County, Massachusetts.

SECTION SEVEN
This agreement and the auctioneers’ published Conditions of Sale constitute the entire agreement between the parties, and any prior understanding or representation of any kind preceding the date of this agreement shall not be binding on either party except to the extent incorporated in this agreement.

SECTION EIGHT
Any modification of this agreement or additional obligation assumed by either party in connection with this agreement shall be binding only if in writing signed by each party or an authorized representative of each party.

SECTION NINE
The failure of either party to this agreement to insist on the performance of any of the terms and conditions of this agreement, or the waiver of any breach of any of the terms and conditions of this agreement shall not be construed as thereafter waiving any such terms and conditions, but the terms and conditions shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

SECTION TEN
The invalidity of any portion of this agreement will not and shall not be deemed to affect the validity of any other provision. In the event any provision of this agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

SECTION ELEVEN
The rights of each party under this agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.
In witness whereof, each party to this agreement has caused it to be executed at _________________________ on the date indicated below.

This is a legal document constituting a contract between the parties, and it sets out important rights, duties, and responsibilities. If not understood, please consult an attorney before signing.


___________________________________________________ ________________________________________________________________________
(Seller's Signature) (Authorized Representative, ROBERT C. ELDRED CO., INC.)

Date: ______________________________________
Seller Name

Address

____________________________________________


Telephone Number:

FAX: e-mail:


CONDITIONS OF SALE

1. CORRECTNESS OF DESCRIPTION: Robert C. Eldred Co., Inc. (hereinafter referred to as Eldred's) has exercised reasonable care to catalog and describe correctly the property to be sold, but neither Eldred's nor its consignors warrant the correctness of description, attribution, authenticity, or condition of said property. No statements shall be deemed such a warranty or representation or an assumption of liability with respect thereto, but are to be construed as opinions only. Bidders are encouraged to personally examine all property to be sold prior to the beginning of the auction.
2. Unless otherwise announced by the auctioneer at the time of sale, all bids are per lot as numbered.
3. Eldred's reserves the right to withdraw any property before the sale.
4. DETERMINATION OF HIGHEST BIDDER: The highest bidder accepted by the auctioneer shall be the buyer. In the event of any dispute between bidders, the auctioneer may determine who is the successful bidder or the auctioneer may re-offer the article in dispute and his decision shall be final.
5. REJECTION OF BIDS: The auctioneer reserves the right to reject any nominal raise or any bid or raise which, in his opinion, is not commensurate with the value of the article being offered. At his discretion, he may also reject any nominal raise or any bid that he may determine as having a detrimental effect on the item in question or the sale as a whole. Eldred's may refuse to issue bidding privileges to any person not in good credit standing with Eldred's, or to any person who is deemed by Eldred's in its sole discretion, to be disruptive of or harmful to established auction practices, either before or after the acceptance of bids or the fall of the hammer.
6. TITLE: Except as herein otherwise provided, title will pass to the highest bidder as determined by the auctioneer, and the property is thereafter at the purchaser's sole risk and responsibility.
7. PAYMENT: On title passing to the highest bidder acknowledged by the auctioneer, and subject to all the conditions set forth herein, such bidder will thereupon pay the full purchase price. Payment in full is due at the time of sale. Any bills not paid in full within 25 days of the date of the sale will accrue interest at a rate of 1.5% per month. In addition, the purchaser may be subject to one or more of the following actions: a) Any and all legal remedies available to Eldred's and its consignors by law including without limitation the right to hold the purchaser liable for the total purchase price; b) Immediate cancellation of the sale, with Eldred's retaining as liquidated damages all payments made by the purchaser; c) Resale of the property at public auction, wherein the original purchaser shall be liable for any deficiency, costs, and Eldred's commission on both sales. At Eldred's option, payment will not be deemed to have been made in full until Eldred's has collected funds represented by checks, or in the case of bank or cashier's checks, their authenticity has been confirmed.
A buyer's premium will be added to the hammer price to be paid by the buyer as part of the purchase price.
8. ORDER BIDS: Subject to these Conditions of Sale and to such terms and conditions as it may prescribe, but at no charge to the customer, Eldred's will undertake to execute all order bids submitted to it by a customer who has established credit with said company. Requests for such bidding must be given in writing with such clearness as to leave no room for misunderstanding as to the amount to be bid and must state the catalog number and the name or title of the article to be bid on. Telephone bids must be confirmed in writing or by cable. All bids are kept in strict confidence. In the event of identical bids, (eBay bids are not received by Eldred’s until the moment of sale) the earliest will take precedence. Eldred's shall not be held responsible for errors or failure to execute bids. A deposit of 10% of the total amount bid is required. TELEPHONE BIDS: While the sale is in progress, bidding by telephone may be allowed by the auctioneer at his discretion. A deposit of 10% of the anticipated top bid is required. Eldred's shall not be held responsible for any failure to properly execute such a bid whether it be due to equipment failure, loss of connection, or failure to hear or understand the bidder's directions. Any advice or opinions provided by Eldred's or its employees are given strictly as a courtesy and are not a warrant of condition, attribution, authenticity, or description of said property. All bidding by telephone is solely at the risk of the bidder.
9. CONDITION: If for any cause whatsoever any article sold cannot be delivered, or cannot be delivered in as good condition as the same may have been at the time of sale, due to a failure or damage on the company's part, the sale will be cancelled, and any amount that may have been paid on account of the sale will be returned to the purchaser. EXCEPTION: Eldred's will not be held responsible for damage to picture frames or lampshades.
10. SALES TAX: All purchases are subject to the Massachusetts sales tax (currently 5%) unless the purchaser A) possesses a Massachusetts sales tax exemption or resale number and registers that number with the company, B) is an out of state vendor who meets all the requirements of Massachusetts Department of Revenue GLC 64H 1(5) and Directive 89 10 and registers with the company prior to each purchase, or C) has purchases shipped out of state directly from Eldred's by a bona fide shipping agent. Dealers, museums, etc. can apply for a Massachusetts number prior to the auction by contacting the Massachusetts Department of Corporations and Taxation, 100 Cambridge Street, Boston, MA 02204.
11. RESERVES: Unless advertised as an "Unreserved Auction", all sales may have items subject to reserve (an agreed upon price between the auctioneer and the consignor, below which the article will not be sold).
12. UNDELIVERED ITEMS: All purchases not picked up within two weeks of the day of the sale may be shipped by Eldred's to the purchaser. All shipping, packing and handling charges will be the responsibility of the purchaser. If said articles have not been paid for, see paragraph 7 above.
13. PACKING: Purchasers are advised that packing and/or handling by Eldred's employees is undertaken solely as a courtesy for the convenience of customers. In the case of fragile articles, it will be undertaken at the sole discretion of the company. Handling and packing by Eldred's is at the risk of the purchaser. SHIPPING: When requested, Eldred's may arrange shipment of paid purchases. Eldred's will not be responsible for damage or loss once the item has been received by the shipper. In the case of fragile articles, shipping will be undertaken at the sole discretion of the shipper. Please refer to our Advice to Bidders for details.
14. These Conditions of Sale cannot be altered except in writing by Eldred's or by public announcement by the auctioneer at the time of the sale.
15. Bidding on any article(s) indicates acceptance of the terms set forth above.
16. These Conditions of Sale and any suits arising thereunder shall be construed and governed by the laws of Massachusetts.

Revised 2/9/04

Last updated: February 2, 2016

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