This Agreement sets forth the basic terms and conditions that govern PBA Galleries'
contractual arrangements with you, the undersigned Seller, with respect to property that
the undersigned Seller offer for sale from time to time on PBA Galleries' website in
PBA Galleries' Online Auction Room program. This Agreement is intended, among other things,
to promote integrity and reliability among the Sellers participating in PBA Galleries' Online Auction Room.
PBA Galleries' "Conditions of Sale" that are published on PBA Galleries' website at
www.pbagalleries.com, contain the terms pursuant to which bidders participate in auctions conducted by
the undersigned Seller and hosted on PBA Galleries' site.
These Conditions of Sale are binding on the undersigned Seller, the ultimate purchasers
of items offered by the undersigned Seller on PBA Galleries' site, and all bidders,
and by signing this Agreement, the undersigned Seller also agrees to be bound by and
comply with these Conditions of Sale. We may modify the Conditions of Sale from time to time,
as we deem appropriate, including, without limitation, changes due to tax or regulatory considerations that may affect
the manner in which the undersigned Seller may conduct auctions on PBA Galleries' site.
For more information regarding PBA Galleries'Conditions of Sale, please see paragraph 2 below.
PBA Galleries'Online Auction Room website acts solely as a venue for the undersigned
Seller to conduct auctions for property posted by the undersigned Seller on the site, and for bidders
to bid for such property in auctions conducted by the undersigned Seller. PBA Galleries is not involved in the
actual transaction between the undersigned Seller and purchasers of items the undersigned Seller
posts on PBA Galleries' site for sale at auction. We therefore have no control over the ability of purchasers
to purchase items offered for sale by the undersigned Seller on PBA Galleries' site or whether
or not purchasers will complete the purchase of items on which they have bid.
1. Listing Property for Sale on PBA Galleries' Site
As a participating Seller in PBA Galleries' Online Auction Room program,
the undersigned Seller may list property for sale at auction on
PBA Galleries' site during the term of this Agreement ("Property "),
subject to the following terms and conditions:
(a) Preparing Property Descriptions. The undersigned Seller agrees to describe all property offered by
the undersigned Seller accurately (including descriptions of any item's physical condition)
in accordance with specific guidelines and Catalogue Description Templates established by PBA Galleries.
We may revise these guidelines and templates from time to time at our discretion, and
the undersigned Seller agrees to comply with any revised guidelines or templates issued
by PBA Galleries in the future.
(b) Responsibility for Property Descriptions.
Restricted and Prohibited Property. Because the undersigned Seller is preparing the property
descriptions and other information posted on the PBA Galleries' site for items offered by
the undersigned Seller, the undersigned Seller is solely responsible for the
content of any information the undersigned Seller posts on the site. The undersigned Seller
agrees that all information, including text and illustrations that the undersigned Seller
posts on the site or any additional information that the undersigned Seller provides to
PBA Galleries or to bidders directly with respect to property posted by the undersigned Seller
on the site, will be true and correct in all material respects and will not be misleading. In addition,
the undersigned Seller agrees that all information the undersigned Seller
posts on the site and the offer and sale of the undersigned Seller's items on the site shall
not (i) be fraudulent or involve the sale of any counterfeit or stolen items, (ii) violate any applicable law,
statute, ordinance or regulation (including, without limitation, those relating to import and export control,
consumer protection, unfair competition, anti-discrimination or false advertising), (iii) infringe any third party's
intellectual property rights, including, without limitation, any copyright, patent, trademark, trade secret or
other proprietary rights, (iv) infringe the right to privacy or publicity of any third party, (v) defame any third
party or contain libelous material, (vi) contain obscene or pornographic material, (vii) contain any virus or other
computer programming that may damage or interfere with the operation of PBA Galleries' website or
data provided by other participants on PBA Galleries' site, or (viii) damage the reputation,
business or goodwill of PBA Galleries. If we blieve that information the undersigned Seller
has posted on PBA Galleries' site or the offer or sale of the undersigned Seller
's items on PBA Galleries' site does not conform to the foregoing requirements or
otherwise may expose the undersigned Seller or PBA Galleries to potential
liability or the threat of litigation, we may, in PBA Galleries' sole discretion,
delete such information, terminate any auction that has commenced, and/or take such other action as we deem
necessary or appropriate.
(c) Updating Property Descriptions.
Once the undersigned Seller has posted information on PBA Galleries' site,
the undersigned Seller agrees to notify PBA Galleries promptly should
the undersigned Seller become aware of any fact or circumstance that makes the descriptions
the undersigned Seller has posted inaccurate or misleading in any material respect.
We reserve the right, in PBA Galleries' sole discretion, to terminate any auction that has
commenced and to determine whether to allow the undersigned Seller to re-offer the item with a
revised description.
(d) Participating SELLER Identification Number. PBA Galleries will issue to the undersigned Seller
an identification number that will enable the undersigned Seller to post property for
sale on PBA Galleries' site. The undersigned Seller will not disclose
this identification number to any third party, and, should the undersigned Seller discover
that this identification number is no longer confidential, the undersigned Seller will
inform PBA Galleries immediately.
(e) Estimates and Reserve Prices.
When posting property for sale on PBA Galleries' site,
the undersigned Seller is responsible for establishing the pre-sale estimates for each item.
The undersigned Seller will also establish a minimum acceptable bid, at which the auction will begin.
(f) Assistance in Auctions. PBA Galleries will be available to assist the undersigned Seller
generally with posting property for sale and interfacing with PBA Galleries' site.
However, while PBA Galleries' help-desk personnel are familiar with PBA Galleries'
catalogue description templates, they will not be able to assist the undersigned Seller
with questions of authenticity, estimated value, reserve prices or related matters.
In addition, they will not be able to provide general training in computer or Internet usage,
nor assist the undersigned Seller in resolving problems with the undersigned Seller's
computer hardware or software. The undersigned Seller hereby releases PBA Galleries
and our affiliates from any claim or liability arising out of or in connection with any assistance provided by
PBA Galleries' help-desk personnel or other PBA Galleries' personnel in connection with
offering property for sale on PBA Galleries' site.
2. Conditions of Sale, Warranty of Authenticity
The offer and sale of any item of property on PBA Galleries' site is subject to the
Conditions of Sale. The Conditions of Sale are posted on
PBA Galleries' site and all bidders must agree to be bound by them as a condition to bidding
in an auction. By signing this Agreement, the undersigned Seller agrees to
be bound by and comply with the Conditions of Sale, as they may be modified from time to time,
as we deem appropriate. The undersigned Seller further agrees that an intended beneficiary of
this agreement to be bound by the Conditions of Sale will be the purchaser of
any item offered by the undersigned Seller on PBA Galleries' site.
The Conditions of Sale establish the contractual terms on which the undersigned Seller
is required to sell and transfer clear and unencumbered title of the item offered by the undersigned Seller
on PBA Galleries' site to the successful bidder at auction. The Conditions of Sale state,
among other things, that property sold by the undersigned Seller may be returned by the purchaser,
the sale rescinded and the purchase price refunded under the following circumstances: (i) printed books sold by
the undersigned Seller proves upon collation to be defective in text or illustration
(provided such defects are not indicated within the description provided by the undersigned Seller),
(ii) autographs prove not to be genuine (if this can be demonstrated and if not indicated in the description provided by
the undersigned Seller), or (iii) an item's physical condition is not substantially correct based upon a
fair reading of the description of the item as a whole.
In the interest of providing bidders with consistent and reliable service for property sold by
the undersigned Seller on PBA Galleries' site, the undersigned Seller
may not modify or disclaim this warranty in the descriptions the undersigned Seller provide for an item
or in any other statement made to the purchaser by selling "with all faults." As we are not examining the item, please
note that we take no responsibility for the content or accuracy of any property descriptions provided by the
undersigned Seller, and we have no liability to a purchaser in the event the purchaser believes the description
was misleading, inaccurate or otherwise provides him or her with grounds for rescission of the sale.
Please note that a purchaser may have other grounds for rescission under applicable law, including, without limitation
due to any title defect. If a purchaser requests that the undersigned Seller rescind a sale of an
item sold on PBA Galleries' site, the undersigned Seller agrees to consider such
purchaser's claim in good faith, and to rescind a sale under the Conditions of Sale if appropriate.
All claims for rescission must be resolved directly between the undersigned Seller and the purchaser.
While we cannot compel the undersigned Seller to rescind a sale based on a purchaser's claim, we may
investigate a purchaser's complaint that his or her rescission claim was not handled by the undersigned Seller
in accordance with the Conditions of Sale, and if we determine in good faith and in
PBA Galleries' sole discretion that the purchaser's claim was proper and that rescission should have
been granted, we reserve the right to terminate this Agreement with the undersigned Seller
on ten (10) days notice. The undersigned Seller agrees to cooperate with any investigations we conduct in response to a purchaser's claim, and to provide us with any documentation in the undersigned Seller's
possession on which the undersigned Seller determined that rescission was not required.
The undersigned Seller further agrees to indemnify and hold PBA Galleries and its officers,
directors, employees, shareholders, subsidiaries, affiliates, representatives and agents, and their respective successors
and assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, damages, liabilities,
obligations, costs and expenses (including reasonable attorneys' fees) ("Damages") incurred by any of the Indemnified Parties,
arising out of or resulting from any claim by a purchaser or any bidder against any of the Indemnified Parties arising out
of or relating in any way to the offer or sale of any item by the undersigned Seller on
PBA Galleries' site, or arising out of or relating to any rescission claim made by a purchaser.
3. Collection and Remittance of Hammer Price and Delivery of Property Sold
(a) Collection of Hammer Price from the Purchaser.
Upon the completion of an auction for an item posted on PBA Galleries' site by
the undersigned Seller for sale, the undersigned Seller is solely responsible for
arranging directly with the purchaser to collect payment from the purchaser, and PBA Galleries
have no obligation to enforce payment by any purchaser. The undersigned Seller is also solely
responsible for collecting from the purchaser and/or paying any applicable sales, use, GST, VAT or any other taxes
required pursuant to applicable law, and any shipping and insurance charges. The undersigned Seller
hereby releases the Indemnified Parties from any claim or liability arising out of or in connection with the failure
of any purchaser to pay any amount due to the undersigned Seller or any dispute between the
undersigned Seller and any purchaser in connection with the undersigned Seller's offering
or sale of property on PBA Galleries' site.
(b) Shipment of Property.
Upon the completion of an auction, the undersigned Seller is solely responsible for arranging
directly with the purchaser to ship the item(s) sold to the purchaser, including verifying the shipping
instructions with the purchaser prior to shipment. PBA Galleries are not responsible or liable
to the undersigned Seller or the purchaser for any errors in shipping instructions provided by
the undersigned Seller to the purchaser. The undersigned Seller agrees to
indemnify and hold each of the Indemnified Parties harmless from and against any damages incurred by any of the
Indemnified Parties arising out of or resulting from any claim by a purchaser against any Indemnified Party relating
in any way to the undersigned Seller's failure to deliver any item(s) sold by the
undersigned Seller on PBA Galleries' site. The undersigned Seller
further agrees that the undersigned Seller will be responsible for arranging for shipment and
insurance directly with the purchaser (at the purchaser's expense) and the payment by the purchaser of any shipping
and insurance charges and customs duties payable in connection with such shipment. The undersigned Seller
and the purchaser are also solely responsible for compliance with any applicable export or import laws and
regulations relating to the sale and shipment of the undersigned Seller's property sold on
PBA Galleries' site.
4. Unsold Property
If an item posted by the undersigned Seller remains unsold for any reason after any private
sale period, the undersigned Seller agrees that the undersigned Seller will not
reoffer the unsold item on PBA Galleries' site for a period of six months from the conclusion of
the auction in which it was first offered unless the undersigned Seller re-offers it with a reserve
price equal to an amount not greater than 60% of the reserve price on the item when it was originally offered, and
at estimates reduced in an equal amount.
5. Catalogue Database
As a service to the undersigned Seller and to bidders, we will maintain an archival database of
property descriptions and sale results for all items offered and/or sold on PBA Galleries'
site for two weeks after close of sale. As a participating Seller in PBA Galleries'
Online Auction Room program, this database will be available to the undersigned Seller
when researching property or determining estimates. So that we may compile and publish this database and otherwise
freely use the information the undersigned Seller provides to us (including digital images of any
item offered or other images provided by the undersigned Seller -- collectively, the Participant
Information), the undersigned Seller hereby grants to PBA Galleries and our
affiliated entities an irrevocable, non-exclusive, worldwide, royalty-free, perpetual license and right to exercise
the copyright and publicity rights the undersigned Seller has in the Participant Information and
the right to publish, reproduce or otherwise use all Participant Information for all purposes. If the
undersigned Seller includes in Participant Information any material of which the use requires the permission
of any copyright holder or any other person having rights in such material, the undersigned Seller
agrees to obtain any necessary permissions or licenses to use such material in the manner contemplated in this
Agreement prior to posting it on the site. Please note that we may limit the scope of this
database (including, without limitation, the time period covered by such database) from time to time in
PBA Galleries' discretion.
6. Fees
The fees for selling items in PBA Galleries'Online Auction Room are as follows:
There is no fee to list items for auction. If an item does not sell, there is no charge to the seller. On sold items, the seller's commission is:
$2.00 flat fee
5% of the total sale
The following is an example of this calculation:
on an item selling for $250.00, the seller's commission would be calculated as follows:
flat fee
= $2.00
$250 @ 5.0%
= $12.50
The total commission would therefore be $12.50, plus the $2.00 flat fee, equaling $14.50.
All fees are quoted in United States dollars. The undersigned Seller is responsible for paying all
applicable taxes and for all hardware, software, service and other costs the undersigned Seller incurs
in selling items on PBA Galleries' site and in using PBA Galleries' servers and
PBA Galleries' site. We may, in PBA Galleries' sole discretion, add, delete or alter any or all
of PBA Galleries' services at any time.
7. Representations, Warranties and Additional Agreement.
(a) Representations and Warranties Regarding Property.
Upon the posting of any property for sale on PBA Galleries' site, the undersigned Seller
will be deemed to make to PBA Galleries the representations and warranties set forth in the
Conditions of Sale applicable to the undersigned Seller, as it may be amended
from time to time.
(b) Additional Agreements.
In addition to the undersigned Seller's other covenants and agreements set forth in this
Agreement, please note the following agreements that apply to
the undersigned Seller as a participating Seller in PBA Galleries'
Online Auction Room program:
(i) The undersigned Seller agrees to indemnify and hold each of the Indemnified Parties
harmless from and against any and all damages (including, without limitation, liability for the payment of any
transaction taxes) incurred by any of the Indemnified Parties relating to, arising out of, or resulting from
the undersigned Seller's breach or alleged breach of any of the undersigned Seller's agreements,
covenants, obligations, representations or warranties in this Agreement.
(ii) The undersigned Seller agrees that the undersigned Seller will not bid or
instruct others to bid an the undersigned Seller's behalf on any property offered by the
undersigned Seller. The undersigned Seller further agrees that the undersigned
Seller will not make any action that may manipulate the successful hammer price of an item.
Once the undersigned Seller has posted an item of property for sale on the site,
the undersigned Seller will sell the property to the highest bidder whose bid meets or
exceeds the reserve price; the undersigned Seller will ship the property in accordance
with the purchaser's instructions and applicable law (including any laws, rules or regulations that require
declaration to governmental authorities upon the export or import of the property and payment of any duties
or taxes upon such export or import), and otherwise comply with the Conditions of Sale.
(iii) The undersigned Seller may not withdraw any property from sale once it has been
posted on the site. Once the undersigned Seller has posted an item of property for sale on
the site, the undersigned Seller may not offer the property for sale through any other means,
including privately, during, the duration of the auction on PBA Galleries' site.
(iv) The undersigned Seller agrees not to damage or interfere with the operation of
PBA Galleries' website or with any auction being conducted on PBA Galleries'
website, or to intercept or expropriate any system, data or personal information from PBA Galleries'
site, through any device, software, virus or other means, including, without limitation, time bombs or other computer
programming routines.
(v) The undersigned Seller acknowledges and agree that this Agreement, the
Conditions of Sale and any other policies referred to herein, the Catalogue Descriptions Templates,
and any other material provided to the undersigned Seller by PBA Galleries in
connection with PBA Galleries'Online Auction Room program (the Program Materials)
are proprietary information of PBA Galleries, and shall remain the exclusive intellectual property of
PBA Galleries. The undersigned Seller agrees that the undersigned Seller
will use the Program Materials only in connection with the undersigned Seller's participation
in PBA Galleries'Online Auction Room program and for no other purpose, and will not
disclose or provide such Program Materials or copies thereof to any third party.
8. Amendment and Modification PBA Galleries may amend this Agreement from time to time by posting the terms on the
Online Auction Room Information page available through PBA Galleries' website.
PBA Galleries will send the undersigned Seller an e-mail each time we amend the
terms of this Agreement. Each amendment will be automatically effective thirty (30) days after
it is initially posted on PBA Galleries' site, excepting that any such amendment shall not affect
the sale of any property that the undersigned Seller posted for sale before such amendment was
posted if such amendment would materially and adversely affect the undersigned Seller's rights
with respect to such sale.
9. Term and Termination
This Agreement commences on the date the undersigned Seller signs this
Agreement, as noted below, and shall continue in effect until terminated by either party
as provided herein. PBA Galleries reserve the right to terminate this Agreement
on thirty (30) days notice for any reason. PBA Galleries may terminate this Agreement
immediately and cancel any auctions in which property posted by the undersigned Seller is being
offered in the event that we determine in PBA Galleries' good faith discretion that the
undersigned Seller has breached any term of this Agreement. If this Agreement
is terminated for any reason, the undersigned Seller's obligations under the Conditions
of Sale to purchasers who have acquired items sold by the undersigned Seller on PBA
Galleries' site will survive the termination of this Agreement. In addition,
the undersigned Seller's representations and warranties contained in paragraphs 1(b) and 7 hereof with
respect to property sold by the undersigned Seller on PBA Galleries' site prior to
the termination of this Agreement, the undersigned Seller's obligations contained
in paragraphs 5, 7(b)(i), 7(b)(v) and the last sentence of paragraph 2 hereof shall survive the termination of this
Agreement. In addition to the right to terminate this Agreement upon a breach
of paragraph 7(b)(iv), we reserve the right to seek damages for any damage to or interference with the operation
of PBA Galleries' site.
10. Miscellaneous
(a) Governing Law; Submission to Jurisdictio.
This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of California applicable to contracts entered
into and to be performed entirely within the State of California between California residents. In the event of
a dispute hereunder, the undersigned Seller agrees to submit to the exclusive jurisdiction of
the state courts of California and the federal courts sitting in California, and further agree that any cause of
action arising under this Agreement shall be brought exclusively in courts located in the City
and County of San Francisco, State of California.
(b) Severability.
If any one or more of the provisions contained in this Agreement for any reason is
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
(c) Assignment.
This Agreement shall be binding upon the undersigned Seller's heirs, executors,
beneficiaries, successors and assigns. The undersigned Seller may assign this Agreement
to another entity or person only with PBA Galleries' prior written consent and in
PBA Galleries' sole discretion. We may assign this Agreement to any affiliate of
PBA Galleries.
(d) No Agency. The undersigned Seller and PBA Galleries are independent contractors,
and the undersigned Seller acknowledges and agrees that no joint venture, partnership, agency,
franchise or employment relationship between the parties is created or intended by this Agreement.
The undersigned Seller further agrees not to represent to third parties that the undersigned
Seller is an agent, partner, in joint venture, employee of PBA Galleries or any of our
affiliates.
(e) Notices.
Any notices under this Agreement shall be given by e-mail. PBA Galleries'
e-mail address is pba@pbagalleries.com. Any notices PBA Galleries give to the undersigned
Seller hereunder will be addressed to the e-mail address the undersigned Seller provides.
Either party may change its address by e-mail notification to the other party. Notice shall be deemed to have been
given twenty-four (24) hours after it has been sent, unless the sending party is notified that the e-mail address is
invalid or that the e-mail message was not received. Alternatively, either party may give notices hereunder via
certified mail, return receipt requested and postage pre-paid, or reputable overnight courier service to the other
at the respective address indicated an the last page of this Agreement (or to such other address as
the undersigned Seller or PBA Galleries may notify the other in writing), in which
case notice shall be deemed to have been given five (5) calendar days after mailing to such address or one business
day after delivery by reputable overnight courier.
(f) Disclosure of Warranties: Limitation of Liabilities. PBA GALLERIES' WEBSITE IS PROVIDED FOR THE UNDERSIGNED SELLER'S USE AND THE USE OF
BIDDERS "AS IS" AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. WE SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. IN NO EVENT SHALL WE BE LIABLE FOR LOST
PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR THE USE OF PBA GALLERIES' WEBSITE. Please note that this disclaimer of warranties, and
limitation of liabilities applies to PBA Galleries' service providers and to PBA Galleries'
affiliates. We do not guarantee or represent that the site will operate error-free or that service will be
uninterrupted.
(g) Entire Agreement.
This Agreement, the Conditions of Sale, and other policies as
PBA Galleries may adopt from time to time, as each may be amended from time to time,
constitute the entire agreement between the parties with respect to the transactions
contemplated hereby and supersede all prior or contemporaneous written, oral or implied understandings,
representations and agreements of the parties relating to the subject matter of this
Agreement.
[Remainder of this Page Intentionally Left Blank]
Please confirm your agreement with the foregoing by signing, dating and returning this Agreement to
PBA Galleries. We will advise the undersigned Seller in writing of
PBA Galleries' acceptance of this Agreement, and upon PBA Galleries'
acceptance, this Agreement shall be effective and create a legal, binding and enforceable
agreement.
ACCEPTED AND AGREED TO:
Name of Seller:
________________________________
Dated:
________________________________
Signed:
________________________________
Name and title:
________________________________
Seller's mailing address:
________________________________
Seller's e-mail address
(if the undersigned Seller have one currently):
________________________________
Do you have a website,
and if so, what is your URL or internet address?
________________________________
UPON EXECUTION, PLEASE RETURN THE SIGNED AGREEMENT TO PBA GALLERIES VIA MAIL OR RELIABLE
COURIER SERVICE TO THE FOLLOWING ADDRESS:
PBA GALLERIES
133 KEARNY STREET, FOURTH FLOOR
SAN FRANCISCO, CA 94108
