TERMS AND CONDITIONS
Please read these Terms and Conditions, which have recently been revised, carefully! They contain important information about the online auction and BIDDERS' and PURCHASERS' rights and responsibilities. This is a legal agreement between you and KW AUCTIONS.
KW AUCTIONS offers this site to BIDDERS, to bid in this online auction. BIDDERS must read and understand these Terms and Conditions. By placing a bid, the BIDDER agrees to all Terms and Conditions and agrees that the Terms and Conditions are binding on all parties. Do not bid unless you agree to all of the Terms and Conditions.
AUCTION SITE: KW AUCTIONS' warehouse facility at 136 Moore Ave. S., Waterloo Ontario unless otherwise indicated on KW AUCTIONS' web site.
BIDDER: The person or corporation agreeing to these Terms and Conditions. Successful BIDDERS are also referred to as "you", "PURCHASERS" or "BIDDERS/PURCHASERS", either in the singular or plural, when required by the context.
CONSIGNOR: The person or corporation offering items for sale at auction, and entering into a Consignment Agreement with KW AUCTIONS for this purpose. CONSIGNORS are also referred to as "SELLERS" or "CONSIGNORS/SELLERS", either in the singular or plural, when required by the context.
INSPECTION PERIOD: The period of time (within specified hours) during which potential BIDDERS have an opportunity to inspect the items offered for sale at the auction site.
ITEM: an item or lot offered for sale by auction.
PICKUP WINDOW: The period of time (within specified hours) during which PURCHASERS must pay for purchased items and remove the same from the auction site.
PURCHASER: The person or corporation agreeing to these Terms and Conditions and submitting the highest bid for an item. PURCHASERS are also referred to as "BIDDERS" or "BIDDERS/PURCHASERS", either in the singular or plural, when required by the context.
RESERVE PRICE: A minimum dollar amount that the CONSIGNOR will accept as the winning bid. The reserve price prevents an item from being sold at a price that is lower than the CONSIGNOR will accept.
SELLER The person or corporation offering items for sale at auction, having entered into a Consignment Agreement with KW AUCTIONS for this purpose. SELLERS are also referred to as "CONSIGNORS" or "CONSIGNORS/SELLERS", either in the singular or plural, when required by the context.
2. REGISTRATION: REGISTRATION IS 100% FREE. To gain access to this online auction, BIDDERS are required to register and create a username and password. All BIDDERS must be eighteen years or older in order to register. All information provided by BIDDERS to KW AUCTIONS must be current, complete, and accurate.
BIDDERS agree to accept responsibility for all activities that occur under their account. BIDDERS are responsible for maintaining the confidentiality of their accounts and passwords, and for restricting access to their accounts. If at any time a BIDDER feels that his/her username and/or password have been compromised, the BIDDER must notify KW AUCTIONS immediately.
KW AUCTIONS, at its sole discretion, may ban from further use of its website any BIDDER/PURCHASER or CONSIGNOR/SELLER which KW AUCTIONS believes to have in any way misrepresented his, her or itself or any item consigned; failed to abide by these Terms and Conditions; or conducted any improper auction behaviour as determined solely by KW AUCTIONS.
3. IDENTIFICATION AND PRIVACY: At time of registration, KW AUCTIONS collects basic information about the BIDDER. This data is needed to verify the BIDDER's identity.
We are required to secure your consent to communicate with you electronically. By registering for this auction, you are opting in to receive auction notices from KW AUCTIONS. You may withdraw your consent to receive auction notices at any time by clicking on the unsubscribe link contained within each auction notice.
KW AUCTIONS also uses the information about BIDDERS and CONSIGNORS for the purposes of conducting online auctions.
Your privacy is important to us -- your email address will not be shared with any other party.
4. BIDDING: In order to bid on an item, the BIDDER must register a valid Credit Card on their account. The BIDDER's credit card will be pre-authorized for $1 to ensure that the card is valid. This is NOT a charge; this is a hold amount that will be reversed one week after it is posted.
In order to bid, BIDDER must click "Register to Bid" for each individual auction they wish to bid in. Before a BIDDER can place a bid, she or he must select a valid payment method, by selecting the card information on file, or by entering a new valid credit card.
Some items offered may be the subject of a reserve price by prior agreement between KW AUCTIONS and the CONSIGNOR. KW AUCTIONS may implement such reserve by opening the bidding at a specified starting price on behalf of the Consignor, and/or by placing a bid up to the amount of the reserve on the item. If KW AUCTIONS determines that any opening bid is below the reserve price of the article offered, it may reject the bid and withdraw the article from sale, and if, having acknowledged an opening bid, KW AUCTIONS determines that any advance thereafter is insufficient, it may reject the advance and withdraw the article from sale. Such withdrawal from sale may occur during, or after the close of, the auction period. In no event, shall any item which is the subject of a reserve price, be sold below the reserve price.
The BIDDER may withdraw a bid prior to the close of the auction period, but only by notifying KW AUCTIONS in writing of an intention to do so, provided however that in no event shall any withdrawal of a bid be effective until KW AUCTIONS has replied to the BIDDER with written confirmation that the withdrawal has occurred. If KW AUCTIONS does not confirm that the withdrawal has occurred prior to the close of the auction period, the BIDDER shall remain liable for its final bid. KW AUCTIONS makes no representations or warranties whatsoever concerning its ability to give effect to withdrawals prior to the close of the auction period. BIDDERS wishing to withdraw a bid are strongly encouraged to notify KW AUCTIONS as soon prior to the close of the auction period as possible.
The BIDDER represents and warrants that any bids placed by the BIDDER or on the BIDDER'S behalf are not the product of any collusive or other anticompetitive agreement and are otherwise consistent with the laws of Ontario and Canada.
5. COMPLETION OF SALE: Except as otherwise provided in these Terms and Conditions, all sales are concluded and final as of the close of the auction period and the sale by the CONSIGNOR/SELLER to the BIDDER/PURCHASER is thereby concluded. Estimates of the closing times of auction periods are indicated under the Auction Information tab, but Section 15 below deals with variations on the closing time of auction periods.
No bids can be withdrawn after the close of the auction period for any reason. Upon conclusion of the sale, the BIDDER/PURCHASER assumes full risk and responsibility for the items purchased.
6. INVOICING: If a BIDDER places a bid determined to be the highest bid at the close of an auction period, the BIDDER is obligated to pay for the item(s) purchased, at the price bid, plus any sales tax and Buyer's premium in effect for the auction (see Section 10 below).
The BIDDER will receive an invoice via email to the address provided at the time of registration within 24 hours of the close of the auction period. This e-mail notification may be the only contact BIDDER receives from KW AUCTIONS about winning bids. It is the BIDDER'S responsibility to check their e-mail to determine what items they have purchased. In the event of a dispute concerning notification, BIDDER agrees to accept KW AUCTIONS' records.
7. PAYMENT: All payments must be paid in Canadian Funds. KW AUCTIONS does not accept partial payments, and the balance of an invoice must be paid in full prior to removal of purchased items from auction site. The BIDDER/PURCHASER has the option to pay for purchased items by Cash, Debit, or Visa/Mastercard during the specified pick-up window for each auction. IF FULL PAYMENT OF INVOICE IS NOT RECEIVED BY THE END OF THE PICKUP WINDOW, KW AUCTIONS RESERVES THE RIGHT TO CHARGE THE FULL BALANCE OF INVOICE (INCLUDING ANY SALES TAX AND BUYER'S PREMIUM) TO THE CARD REGISTERED ON FILE.
Title in a purchased item will not pass until KW AUCTIONS has received the full purchase price in cleared funds. KW AUCTIONS is not obligated to release an item to the PURCHASER until title to the lot has passed and any earlier release does not affect the passing of title or the PURCHASER'S unconditional obligation to pay the full purchase price. In addition to other remedies available by law, KW AUCTIONS reserves the right to impose from the date of sale a late charge of the annual percentage rate of Prime + 6% of the total purchase price if payment is not made in accordance with the conditions set forth herein.
KW AUCTIONS reserves the right to refuse to accept payment from a source other than the buyer of record. All charges are subject to all applicable taxes, including GST/HST and provincial sales tax.
8. SALES TAX: HST is payable by the PURCHASER on the total purchase price, including the Buyer's premium, for purchases picked up or delivered in Ontario, Canada. In certain cases HST at a different rate, or only the 5% GST, may be payable. When we are requested to place the property on a common carrier or mail the property, for export and delivery to a location outside of Canada, there will be no GST/HST payable.
9. EXPORTS AND PERMITS: It is the PURCHASER'S sole responsibility to identify and obtain any necessary export, import, firearm, endangered species or other permit for any item purchased. KW AUCTIONS and the CONSIGNOR make no representations or warranties as to whether any lot is or is not subject to export or import restrictions or any embargoes.
10. BUYER'S PREMIUM: A Buyer's premium will be charged for all purchases and is payable by the BIDDER/PURCHASER as part of the total purchase price. This Buyer's premium varies depending on the auction. The Buyer's premium in effect for each auction will be noted in the Auction Information tab available by clicking on the Auction Details button. BIDDERS may also call KW AUCTIONS to inquire about the amount of the Buyer's premium for any auction.
11. CONDITIONS OF ITEMS SOLD: All items are offered and sell AS IS - WHERE IS WITH ALL FAULTS and with no warranty of any type, expressed or implied, as to the merchantability, fitness for any particular purpose, authenticity, authorship, correctness of the web site or any other description of any items as to their physical condition, size, quality, rarity, accompanying copyright or any other factor affecting their value. All BIDDERs are urged to personally inspect the items during the inspection period. No bids can be withdrawn after the close of the auction period for any reason.
BIDDER agrees that any oral representation, image or written description made by KW AUCTIONS, its employees, agents or assigns, shall not modify these "AS IS - WHERE IS WITH ALL FAULTS" terms. KW AUCTIONS makes every effort to ensure that all information and descriptions contained on its website or in any other advertising of this sale are correct, but no responsibility is assumed by KW AUCTIONS, its employees, agents or assigns for any errors or omissions.
12. PACKING AND SHIPPING: KW AUCTIONS is not responsible for the acts or omissions in our packing or shipping of purchased items or of other carriers or packers of purchased items, whether or not recommended by KW AUCTIONS. Packing and handling of purchased items is at the sole risk of the purchaser.
13. REMOVAL AND FAILURE TO REMOVE. All items purchased must be removed from the auction site without damaging any property and by the close of the pickup window. All costs, responsibility and risk of such removal shall be borne by BIDDER/PURCHASER and, in every case, the BIDDER/PURCHASER will use prudence and care in such removal. If for any reason BIDDER/PURCHASER fails to remove any items purchased within the time specified, KW AUCTIONS shall have the right, but not the obligation, in its sole discretion, to resell, discard or remove and store said items purchased at BIDDER/PURCHASER'S sole risk and expense, without waiving any rights that KW AUCTIONS or CONSIGNOR/SELLER may have against BIDDER/PURCHASER. Storage charges accruing after the close of the pickup window will be the responsibility of the BIDDER/PURCHASER. If the items purchased have not been removed by the end of the pickup window, KW AUCTIONS reserves the right to charge the BIDDER/PURCHASER'S credit card on file for the full invoice amount or any portion of the invoice at KW AUCTIONS' sole discretion.
14. DEFAULT BY THE BIDDER/PURCHASER: If any applicable conditions herein are not complied with by the BIDDER/PURCHASER, the BIDDER/PURCHASER will be in default and in addition to any and all other remedies available to KW AUCTIONS and the CONSIGNOR/SELLER by law, including, without limitation, the right to hold the BIDDER/PURCHASER liable for the total purchase price (including all fees, charges and expenses more fully set forth herein. KW AUCTIONS, at its option, may: (a) cancel the sale of that or any other item sold to the defaulting BIDDER/PURCHASER at the same or any other auction, retaining as liquidated damages all payments made by the BIDDER/PURCHASER; or (b) resell the purchased property, whether at public auction or by private sale; or (c) effect any combination thereof.
In any case, the BIDDER/PURCHASER will be liable for any deficiency, any and all costs, handling charges, late charges, expenses of both sales, KW AUCTIONS' commissions on both sales at its regular rates, legal fees and expenses, collection fees, applicable taxes, and incidental damages. KW AUCTIONS may, in its sole discretion, apply any proceeds of sale then due or thereafter becoming due to the BIDDER/PURCHASER from it or any affiliated company, or any payment made by the BIDDER/PURCHASER to us or any affiliated company, whether or not intended to reduce the BIDDER/PURCHASER'S obligations with respect to the unpaid item or items, to the deficiency and any other amounts due to KW AUCTIONS or any affiliated company.
In addition, a defaulting BIDDER/PURCHASER will be deemed to have granted and assigned to KW AUCTIONS and any affiliated company, a continuing security interest of first priority in any property or money of or owing to the defaulting BIDDER/PURCHASER in KW AUCTIONS' possession or in the possession of any affiliated company, and KW AUCTIONS may retain and apply such property or money as collateral security for the obligations due to KW AUCTIONS or to any affiliated company. KW AUCTIONS shall have all of the rights accorded a secured party under the Personal Property Security Act, R.S.O. 1990, c. P.10. Payment will not be deemed to have been made in full until KW AUCTIONS has collected good funds.
In the event the BIDDER/PURCHASER fails to pay any or all of the total purchase price for any item and KW AUCTIONS nonetheless elects to pay the CONSIGNOR/SELLER any portion of the sale proceeds, the BIDDER/PURCHASER acknowledges that KW AUCTIONS shall have all of the rights of the CONSIGNOR/SELLER to pursue the BIDDER/PURCHASER for any amounts paid to the CONSIGNOR/SELLER, whether at law, in equity, or under these Conditions of Sale.
15. CLOSE OF THE AUCTION PERIOD: Posted closing times and displays of KW AUCTIONS' current time are approximate. All times are based on the Time Zone where the auction is located. KW AUCTIONS reserves the right to close early or extend auctions at any time at its sole discretion. It is strongly recommended that bids be placed early to avoid losing out due to an ill-timed, last minute bid.
16. RIGHT TO TERMINATE AUCTION OR PURCHASE: KW AUCTIONS reserves the right to withdraw any item before the close of the auction and shall have no liability whatsoever for doing so.
If for any reason KW AUCTIONS is unable to complete the sale of any item to the BIDDER/PURCHASER or provide such item free and clear of liens, encumbrances or security interests, the BIDDER/PURCHASER agrees that KW AUCTIONS may terminate the sale, whether before the close of the auction period or afterwards, in which case KW AUCTIONS' only liability shall be the return of any monies actually paid by BIDDER/PURCHASER toward that item.
17. LAWS OF ONTARIO APPLY: These Terms and Conditions, as well as BIDDER'S, the PURCHASER'S and KW AUCTIONS' respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario. By bidding, all BIDDERS including the PURCHASER, shall be deemed to have consented to the exclusive jurisdiction of the courts of the Province of Ontario. All parties agree, however, that KW AUCTIONS shall retain the right to bring proceedings in a court other than a court in the Province of Ontario.
18. DISCLAIMER OF WARRANTY
KW AUCTIONS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEB SITE, THE CONTENT, INFORMATION, OR THE MATERIALS ON THIS WEB SITE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, KW AUCTIONS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, OF ANY KIND, WITH RESPECT TO ANY OF THE MATERIALS, CONTENT, OR INFORMATION ON THIS WEB SITE OR ANY GOODS OR OTHER PRODUCTS OR SERVICES OFFERED, SOLD, OR DISPLAYED ON THIS WEB SITE OR THE BIDDER/PURCHASER'S USE OF THIS WEB SITE GENERALLY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
19. LIMITATION OF LIABILITIES
THE BIDDER/PURCHASER AGREES THAT KW AUCTIONS AND ITS PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM HIS, HER OR ITS POSSESSION OR USE OF THE MATERIALS, CONTENT, OR INFORMATION ON THIS SITE OR FROM ANY PURCHASE OR SALE OF GOODS THROUGH THIS SITE REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, OR OTHERWISE. IN NO EVENT, INCLUDING, WITHOUT LIMITATION, A NEGLIGENT ACT, SHALL KW AUCTIONS OR ANY OF ITS PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE MATERIALS, CONTENT, OR INFORMATION ON THIS SITE OR ANY OTHER PRODUCTS, SERVICES, OR INFORMATION OFFERED, SOLD, OR DISPLAYED ON THIS SITE, YOUR USE OF, OR INABILITY TO USE, THIS SITE GENERALLY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER KW AUCTIONS OR ANY OF ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN THE EVENT THAT ANY COURT OF JURISDICTION DETERMINES THAT THE WHOLE OR ANY PART OF THE FOREGOING LIMITATION IS NOT VALID, OR IN ANY OTHER UNRELATED EVENT, KW AUCTIONS' LIABILITY TO A PURCHASER SHALL NOT EXCEED THE PURCHASE PRICE ACTUALLY PAID BY THE BIDDER/PURCHASER TO KW AUCTIONS.
20. INDEMNIFICATION: THE BIDDER/PURCHASER, AND THE BIDDER/PURCHASER'S ASSIGNS, HEIRS AND SUCCESSORS HEREBY AGREE TO INDEMNIFY AND SAVE KW AUCTIONS, AND ITS ASSIGNS, HEIRS AND SUCCESSORS, HARMLESS FROM AND AGAINST ALL CLAIMS, LOSSES, EXPENSES, DAMAGE OR LIABILITY, (INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES), DIRECTLY OR INDIRECTLY CAUSED BY OR RESULTING FROM AN ACT, INCLUDING THE NEGLIGENT ACTS OR OMISSIONS OF KW AUCTIONS, OR ANYONE ACTING ON ITS BEHALF IN CONNECTION WITH OR ARISING OUT OF AUCTION.
21. PARTIES TO THIS AGREEMENT: The parties to this agreement are 1313124 Ontario Ltd. (operating as KW Auctions), including its successors, heirs and assigns, and the BIDDER who may also be referred to as the PURCHASER or the BIDDER/PURCHASER
22. ASSIGNMENT: The BIDDER may not assign this agreement. This agreement shall be binding on the BIDDER'S successors and heirs.
23. ENTIRE AGREEMENT: These Terms and Conditions constitute the entire agreement between the BIDDER/PURCHASER and KW AUCTIONS.
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