1. Participating in an Auction. By registering to bid and/or by bidding at auction, you agree that these Conditions of Sale are your entire agreement with the seller of the lot (the “Seller”) and Fair Warning, LLC (“Fair Warning”, “we”) and that they govern all bidders (“you”). If you are an agent acting on behalf of a principal, you and your principal jointly and severally assume your obligations and liabilities under these Conditions of Sale.
2. Fair Warning’s Role. Most of the time, Fair Warning acts as the agent for the Seller; the Seller is thus a beneficiary of these Conditions of Sale. When that is not the case, Fair Warning includes a TRIANGLE symbol ∆ in the lot description indicating that Fair Warning or one of its principals is the owner of the lot or has an ownership interest in the lot.
3. Estimates. A lot is given low and high estimates to express Fair Warning’s opinion of the range within which the lot might sell at auction. Estimates are often based on past or current selling prices for comparable property but should not be relied upon as a representation or prediction of actual selling prices.
4. Other Information Provided to Bidders.
a. Provenance. Fair Warning may include in the description of a work its history of ownership if such information contributes to scholarship or is otherwise well-known and assists in distinguishing the work. The identity of the Seller or of other previous owners may not be disclosed for a number of reasons, including the Seller’s request for confidentiality or because the identity of earlier owners is unknown.
b. Authenticity. Fair Warning and the Seller believe the lot is authentic, meaning that its authorship is as set out in CAPITALIZED type in the initial heading in the catalogue description of the lot. Fair Warning and the Seller provide an Authenticity Guarantee, the important terms of which are detailed in below in Section 11.
c. Viewing. Fair Warning will attempt to arrange appointments for viewing of the property when possible. If a viewing cannot be arranged, Fair Warning may provide images and condition reports subject to the paragraph below.
d. Condition, etc.: As Is. We guarantee the authenticity of the lot to the extent described in the Authenticity Guarantee, and that you will receive good title to the lot to the extent required by law. Otherwise, you agree that each lot is sold “as is” and in the condition that it is in at the time of the auction. Neither Fair Warning nor the Seller makes any representations or warranties of merchantability, fitness for a particular purpose, correctness of the catalogue or other images, or descriptions of the physical condition, size, quality, rarity, importance, medium, frame, provenance, exhibitions, literature, or historical relevance of any lot. No statement anywhere, whether oral or written, whether made in the catalogue, an advertisement, a bill of sale, or elsewhere, can be relied on by you or others to be a warranty, representation, or shall give rise to the liability of Fair Warning or the Seller. Images and condition reports are not meant to be complete or a substitute for assessing the condition of the lot yourself or through an agent you may engage; they are for guidance only. Nothing in any written or oral descriptions of a lot constitutes a representation of fact; they represent the opinions held by Fair Warning.
- Artwork with a Guarantee. Fair Warning may, from time to time, guarantee a Seller a minimum price for the sale of the Artwork. Lots with a guarantee will include the ◯ symbol. When providing a guarantee, Fair Warning may incur a gain or a loss, depending on the outcome of the sale.
- Third Party Guarantees or Irrevocable Bids. Fair Warning may, from time to time, secure an irrevocable bid from a third party. Lots with an irrevocable bid will include the ⋑ symbol. Fair Warning will execute the irrevocable bid during the auction, but the irrevocable bidder may place additional bids higher than the irrevocable bid.
f. Fair Warning may compensate an irrevocable bidder for providing the bid. This compensation may either be fixed at a certain amount or may depend on the outcome of the sale. If the irrevocable bidder is successful and Fair Warning reports the final results of the auction, the sale price reported will reflect the amount, if any, paid as compensation to the irrevocable bidder.
g. Irrevocable bidders are prohibited from advising, or bidding for, other bidders for the Artwork subject to the irrevocable bid. Any bidder who is receiving advice on bidding for Artwork with an irrevocable bid may ask the advisor if the advisor has placed the irrevocable bid or advised another bidder to place the irrevocable bid.
5. Reserve. Unless the catalogue says otherwise in writing, every lot is offered subject to a strictly confidential “reserve,” which is the minimum ”hammer price”—the winning bid when the auction closes—at which a lot will be sold. No reserve will exceed the low estimate for the lot unless the lot is subject to an irrevocable bid that exceeds its final low estimate. In that case, the reserve will be set at the amount of the irrevocable bid. Fair Warning may, at its discretion, lower the reserve during the auction.
6. Buyer’s Premium. A buyer’s premium will be added to the hammer price and is payable by the purchaser as part of the total purchase price for the benefit of Fair Warning. The buyer’s premium percentage is stated in the catalog description for each lot.
8. Bidding. The bidder who places the highest bid accepted by Fair Warning will be the purchaser of the lot. Fair Warning has absolute discretion in all matters relating to bidding, including, but not limited to, identifying the winning bidder, handling mistakes or errors in bidding, re-opening bidding, cancelling the sale, and re-offering the property for sale. Fair Warning may place bids below the reserve on behalf of the Seller, either consecutively or in response to other bids. Neither Fair Warning nor the Seller is liable for any errors in the bidding process.
a. Bidding by Fair Warning. Except to protect the reserve, Fair Warning’s officers, directors, employees, etc. may bid in an auction only if such person does not know the reserve and does not have access to any other material information not known to the public.
b. Other Bidding. Fair Warning reserves the right, in its sole discretion, to execute written or telephonic bids, but shall have no obligation to do so and shall not be liable for any errors or omissions in executing such bids should it agree to do so.
9. Withdrawal. Fair Warning reserves the right to withdraw any lot before, during, or after the sale; we shall have no liability whatsoever for such withdrawal.
10. Bidders. By participating in the sale, you represent, warrant, and agree that:
a. Neither you individually nor—if “you” are a company or other entity—any person who owns, partly owns, or controls the company or entity, are subject to trade sanctions, embargoes, or any other restriction on trade in the jurisdiction in which you or it does business, as well as under the laws of the European Union, the laws of England and Wales, or the laws and regulations of the United States (collectively, “Sanctioned Person(s)”);
b. Where acting as agent (with Fair Warning’s prior written consent), your principal is not a Sanctioned Person(s), nor owned (in whole or in part) by a Sanctioned Person(s), nor controlled by a Sanctioned Person(s);
c. None of the purchase price will be funded by any Sanctioned Person(s), nor will any party involved in the transaction, including, but not limited to, financial institutions, freight forwarders or other forwarding agents, or any other party, be a Sanctioned Person(s), nor owned (in whole or in part) by a Sanctioned Person(s), nor controlled by a Sanctioned Person(s), unless such activity is authorized in writing by the government authority having jurisdiction over the transaction or in applicable law or regulation; and
d. You are financially sound and know when and how you will pay for the lot if you are the winning bidder.
You shall indemnify and hold us, our officers and employees, and the Seller harmless against any and all claims, causes of action, liabilities, damages, losses and expenses (including but not limited to reasonable attorneys’ fees) arising out of or in connection with, any inaccuracy, incompleteness or breach of any of your representations, warranties and obligations under these Conditions of Sale to the fullest extent permitted by law.
11. Authenticity Guarantee. We guarantee that the authorship of a lot is as set out in CAPITALIZED type in the initial heading in the catalogue description of the lot. If, in our reasonable opinion, the authorship of the lot as stated in the catalogue description is incorrect, and the conditions specified below have been satisfied, we will refund to the original purchaser of record the hammer price paid and any applicable buyer’s premium. This Authenticity Guarantee is provided to the original purchaser for a period of five (5) years from the date of the auction, is solely for the benefit of the original purchaser of record at the auction and may not be transferred to any third party. To claim under the Authenticity guarantee, the original purchaser must:
a. Within 90 days of becoming aware of any information that casts any doubt on the accuracy of the authorship set out in the capitalized heading of the lot description, provide us with the details of such information and all related documentation;
b. Return the lot to us in the same condition as at the closing date of the sale and be able to transfer good title to the lot, free of any third-party claims arising after the date of such sale; and
c. Provide Fair Warning with reports regarding the authorship of the lot from two (2) independent and recognized experts on the author, or in the field in which the author created the lot, who are reasonably acceptable to Fair Warning.
d. Fair Warning has the sole discretion to waive any of the above requirements.
e. You agree and understand that the rescission of a sale and the refund of the original purchase price paid is your sole remedy and in lieu of any other remedy which might otherwise be available to you. Neither Fair Warning nor Seller shall be liable for any special, punitive, incidental, consequential, or other damages incurred or claimed including, but not limited to, lost profits or interest.
12. Record of Sale. The record of sale kept by Fair Warning is absolute and final in all disputes. In the event of a discrepancy between any online records or messages provided to you and the record of sale kept by Fair Warning, the record of sale will govern.
13. Winning Bidder’s Obligations. Subject only to these Conditions of Sale, the closing of the lot establishes a binding contract between the Seller and the winning bidder. Fair Warning will email and invoice in the name of, and with the address registered for the bid, the winning bidder, which cannot be transferred to other accounts, names, or addresses without Fair Warning’s explicit agreement in writing.
a. Payment. Unless otherwise agreed by Fair Warning in writing, the winning bidder must pay the full price invoiced (including buyer’s premium, applicable tax, and other amounts due), so that it is received by Fair Warning within five (5) business days of the date of the invoice. Unless otherwise agreed, all payments will be made by wire transfer.
b. Tax. Unless exempted by law, the purchaser will be required to pay the combined New York State and local sales tax on the total purchase price, including the buyer’s premium, on any property picked up or delivered in New York State, regardless of the state or country in which the purchaser resides or does business. Purchasers who choose to use their own shipper who is not considered a “common carrier” by the New York Department of Taxation and Finance will be charged New York sales tax on the entire charge regardless of the destination of the Property. If the lot is delivered to a state where Fair Warning is not required to collect sales tax, it is the responsibility of the buyer to self-assess any sales or use tax and remit it to the taxing authorities in that state.
c. Title. Title to, and right to possess, a lot will not pass until Fair Warning has received the full purchase price in good, cleared funds. Fair Warning is not obligated to release a lot to the winning bidder unless he, she, or they has paid the full purchase price (inclusive of the buyer’s premium, taxes, and any other costs identified by Fair Warning) for the lot and any other amounts due to Fair Warning.
d. Collection of Property. Unless otherwise agreed to in writing, purchasers must arrange for the lot to be delivered to them, at their expense, within 30 days of the auction. Before risks of loss or damage to the lot passes to the purchaser in accordance with the terms of this paragraph, we assume liability for loss or damage to the lot subject to the exclusions set forth below and up to the amount of depreciation of the lot (if any) caused by the loss or damage, as reasonably determined by us. Fair Warning’s liability for loss or damage to the Lot shall cease, and you irrevocable release us, our agents and the Seller from any and all claims and liabilities for loss or damage to the lot, upon the earlier of (a) 30 calendar days after the auction or (b) the release of the Lot to you or your designated agent. Fair Warning will not be liable for any loss or damage (i) caused to frames or to glass covering the lot, (ii) occurring in the course of any process undertaken by independent contractors employed with your consent (including restoration, (un)framing (un)mounting or cleaning), or (iii) caused directly or indirectly or results from changes in humidity or temperature; normal wear and tear, gradual deterioration or inherent vice or defect (including woodworm); or war, nuclear fission or radioactive contamination, chemical, bio-chemical or electro-magnetic weapons, or any act or acts of terrorism (as defined and applied by Fair Warning’s insurers).
e. Exports and Permits. It is the purchaser’s sole responsibility to identify and obtain any necessary export, import, or other permit for the lot. Any notices in the lot description reflect Fair Warning’s reasonable opinion at the time of publication and are for bidders’ general guidance only. Fair Warning and the Seller make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes.
14. Fair Warning’s Obligations.
b. EU CONSUMER RIGHTS DIRECTIVE. If you are a consumer habitually residing in the European Union and the Seller of the lot you have bought is not a consumer, you have the right under the EU Consumer Rights Directive to cancel your online purchase within 14 days of the date you collect the lot or it is delivered to you. If the Seller of the lot is not a consumer, Fair Warning will indicate that the EU Consumer Rights Directive applies to this sale by including a DIAMOND symbol ◇ in the description of the lot.
If you qualify for the cancellation right and wish to exercise it, you must notify us in writing within 14 days of the date you collect the lot, or it is delivered to you (“Cancellation Period”). You are considered to have collected a lot if you (or someone you authorize) collects the lot on your behalf. Within 14 days of sending us the cancellation notice, you must return the property to us at your own cost in the same condition as when it was collected by or delivered to you. If a lot was delivered to you, you should use the same shipping method that was used to deliver the lot to you to return the lot. You must pay all return shipping costs, including any applicable import and customs fees, charges and taxes, and answer for any loss or damage to the lot incurred after it was released to you.
Upon receiving the lot, and provided it is in the same condition as when the lot was collected by or delivered to you, we will reimburse the Purchase Price you paid (less any deductions for loss in value of the Property due to your actions or those of one or more of your agents) by the same means that you used to pay the invoice.
15. Fair Warning’s Rights. We hope never to have any disputes with you but, if we do, we will first try to resolve it amicably if we (in our sole discretion) believe that we reasonably can. If we do not resolve the dispute, this section contains the important terms to which you and other bidders agree by participating in the auction.
a. Concerns about Funds. Fair Warning has the right to refuse to accept payment if, in its sole discretion, it has concerns about the accuracy of any of the representations and warranties above, payment comes from a source other than the registered winning bidder identified by Fair Warning as the purchaser of record, or if it believes that accepting the payment would be unlawful or may subject Fair Warning to any liability.
b. Unmet Payment Obligations. Without prejudice to any rights the Seller may have, if you fail to pay the full purchase price invoiced (including buyer’s premium, applicable tax, and other amounts due) for a lot in good, cleared funds within five (5) days of the close of the auction, we may in our sole discretion exercise one or more of the following remedies:
- Cancel the sale of the lot, retaining any partial payment as liquidated damages;
- Charge interest at 12% per annum from the date payment became due until the date the full purchase price is received in cleared funds;
- Resell the lot by auction or private sale, with estimates and a reserve set at Fair Warning’s reasonable discretion, it being understood that in the event such resale is for less than the original hammer price plus buyer’s premium for that lot, the initial purchaser will remain liable for the shortfall together with all costs incurred in connection with such resale;
- Commence legal proceedings to recover the hammer price plus buyer’s premium for that lot, together with interest, reasonable attorney’s fees, and the costs of such proceedings;
- Reject future bids from the purchaser or render such bids subject to payment of a deposit;
- Exercise a lien on any of the purchaser’s property in our possession, arrange the sale of such property and apply any sale proceeds to the amount outstanding;
- Set off the outstanding amount remaining unpaid by the purchaser against any amounts which we may owe the purchaser in any other transactions; and/or
- Release information about the winning bidder sufficient to enable the Seller to recover the amounts due from the auction, plus costs and reasonable attorneys’ fees, in legal proceedings or otherwise.
16. Resolving Disputes. We hope never to have any disputes with you but, if we do, we will first try to resolve it amicably if we (in our sole discretion) believe that we reasonably can. If we do not resolve the dispute, this section contains the important terms to which you and other bidders agree by participating in the auction.
a. Governing Law and Jurisdiction. These Conditions of Sale, as well as bidders’, the purchaser’s, and our respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the State of New York.
b. Mediation and Arbitration. The Parties agree that any disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration in New York City pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on any award may be entered in any court having jurisdiction, The parties waive any objection which they may have now or hereafter to the laying of venue in New York City or the exclusive jurisdiction of JAMS over the Parties.
c. Limitation of Liability. Under no circumstances shall the aggregate liability of Fair Warning and the Seller to a purchaser exceed the purchase price actually paid. Fair Warning will not be liable for any errors or failures to execute bids or for any errors or failures caused by (i) a loss of connection to the internet or the Fair Warning’s online platform by either Fair Warning or a bidder; (ii) a breakdown or problem with Fair Warning’s online platform software; or (iii) a breakdown or problem with a bidder’s Internet connection, mobile network or computer.
d. Allocation of Dispute Costs. The prevailing party—you or us as determined by the Arbitrator—will be entitled to recover the costs of the dispute, including reasonable attorneys’ fees and other costs, plus interest at the rate authorized by New York law.
17. Supplemental Conditions of Sale Applicable to Sale of Non-Fungible Tokens In addition to the above Conditions of Sale, the following provisions apply to sale of Non-Fungible Tokens by Fair Warning:
The buyer will be invoiced for the lot in U.S. dollars and payment in full, including the Buyer’s Premium, will be due within five (5) days of the sale. Payment may be made either in U.S. dollars or in Ether. If payment is made in Ether to Fair Warning’s digital wallet, you will need to remit payment from a digital wallet reasonably acceptable to Fair Warning in its sole discretion, including wallets that are maintained on Coinbase Custody Trust; Coinbase, Inc.; Gemini Trust Company, LLC; or Paxos Trust Company, LLC. Fair Warning will only accept payment from a digital wallet that is registered in your name and we may require you to provide supporting documentation regarding your digital wallet. In addition, Fair Warning will use the spot rate of exchange for Ether as established by Gemini Trust Company, LLC on the date of payment. Please contact Fair Warning prior to the sale for further information relating to those digital wallets from which payment will be accepted.
- Upon receipt of payment for you, Fair Warning, or the consignor, will transfer the NFT to you over makersplace in accordance with its requirements for the transfer of an NFT. https://makersplace.com.Please contact Fair Warning for further details regarding the requirements for the transfer of the NFT to you.
- In accordance with the smart contract associated with NFT, other than with respect to the transfer of the NFT to the buyer, the artist who minted the NFT will receive ten (10) percent of the proceeds from each subsequent sale of the NFT.
b. Risk of Loss; Representations and Warranties
- Like all lots sold by Fair Warning, while Fair Warning guarantees the authenticity of the lot, an NFT is sold “as is,” and neither Fair Warning nor the Seller make any representations or warranties of merchantability, fitness for a particular purpose, correctness of the catalogue or other images, or descriptions of the quality, rarity, importance or historical relevance of any lot. Additionally, neither Fair Warning nor the Seller represent that the NFT does not contain viruses or malware, or that it will function as you expect and without error or mistake and it is the buyer’s sole responsibility to provide appropriate security relating to the NFT.
- You acknowledge that ownership of an NFT carries no rights, express or implied, other than property rights for the lot (specifically, digital artwork tokenized by the NFT). You understand and accept that NFTs are issued by third parties, and not by Fair Warning itself.
- You acknowledge and agree that there are risks associated with purchasing and holding NFTs. By purchasing, holding and using the NFT, you expressly acknowledge and assume all risks including, but not limited to, the risk of losing access to NFT due to the loss of private key(s), risk of mining attacks, custodial error or purchaser error, risk of hacking and security weaknesses, and risk of uninsured losses. If you have any questions regarding these risks, please contact us in advance of bidding.
- You also acknowledge that you have a sufficient understanding of the functionality, storage, transmission mechanisms, usage, and other material characteristics of cryptographic tokens (like NFTs), token storage mechanisms (such as token wallets), blockchain technology and blockchain-based software systems to understand these terms and to appreciate the risks and implications of purchasing NFTs. You acknowledge that you have obtained sufficient information to make an informed decision to purchase an NFT, including an understanding of the code of the smart contract and the NFT, and fully understand and accept the functions of the same. By making a cryptocurrency payment, you (i) warrant that you are the lawful holder of the cryptocurrency; and (ii) acknowledge that Fair Warning has no liability for your payment not reaching us, including, but not limited to, instances where payment through the blockchain is unsuccessful. It is solely your responsibility to confirm that the payment has been accepted.
- You will obtain title to the NFT upon its transfer to your digital wallet. Upon the transfer of title, you assume all risk of loss associated with ownership of the NFT, including but not limited to, the risks that would result if you were to lose your private keys or other credentials necessary to access your NFT.