Buyer Terms and Conditions

1.Terms and Conditions 

All lots will be offered, bid on and sold subject to these terms and conditions as well as any glossary and posted announcements (collectively, the “Terms and Conditions”) and whether or not any seller (also referred to as a consignor), any bidder, any buyer (also referred to as the successful bidder) or any other “Person” (being an individual, corporation, company, partnership, trust, governmental body or any other legal entity) has read any of the Terms and Conditions.  Terms and Conditions are also subject to change by verbal announcement on the day of sale or by posted notice and such Terms and Conditions as so changed form part of the Terms and Conditions.  For greater certainty, the Terms and Conditions form the contract of sale between the successful bidder (the buyer), North American Pen Auctions Ltd. (“NA Pen Auctions”), as auctioneer, and the seller (the consignor) of the lot. 

2.“As Is” and No Warranties 

(a)Descriptions or photographs of lots are not warranties and each lot is sold "as is". While NA Pen Auctions will endeavor not to mislead in the description issued and will use reasonable commercial efforts as to the correct cataloguing of each item, such descriptions are purely statements of opinion and are not intended to constitute (and shall not constitute or be deemed to constitute) a representation or warranty to any seller, bidder, buyer or other Person.  No warranty of the correctness of such description is made.

(b)A lot may be of an age and/or nature which preclude their being in pristine condition and some catalogue descriptions make reference to damage and/or restoration. All photographic representations presented in the catalogue are solely for guidance and are not to be relied upon in terms of tone or colour or necessarily to reveal any imperfections in the lot. NA Pen Auctions cannot guarantee the functionality of any filling or operating mechanism. If mechanical or other working parts are found to be dysfunctional, even if in working order at the time of sale, NA Pen Auctions shall not be liable.  

(c)Any and all information provided by NA Pen Auctions, including by all owners, directors, officers, employees, contractors and agents of NA Pen Auctions, in its catalogues, other written or oral descriptions, email or elsewhere, are statements of opinion. They are not intended to be (and shall not constitute or be deemed to be) warranties or representations of any kind or nature including with respect to the property or its value, merchantability, fitness for a particular purpose, or whether the purchaser acquires any copyrights.  In no event shall NA Pen Auctions or the consignor be responsible for the correctness of descriptions, size, genuineness, attribution, provenance, authenticity, completeness, condition of the property or estimate of value.

3.Bidder Responsible to Inquire  

(a)It is the sole responsibility of a bidder to inquire as to the condition of a lot before bidding. Condition reports are available upon request by phone, email, or in person. A condition report is only a matter of opinion (and not a guarantee or representation or warranty), is non-exhaustive, and NA Pen Auctions shall not be liable for any errors or omissions contained therein. A condition report does not alter the responsibility of a bidder to satisfy itself as to the condition of the lot as provided in the conditions above. A bidder shall make all such requests in advance of the sale. Requests for condition reports must be made no later than 24 hours prior to the commencement of the auction. NA Pen Auctions shall not update or provide a condition report on any lot after the sale of the lot.

(b)Bidders are provided the opportunity to view and inspect all property offered for sale by NA Pen Auctions through public and/or pre-arranged private viewings prior to the auction. No sale shall be rescinded due to a lack of correspondence between the provided description of the property by NA Pen Auctions and the property itself, including the illustration of the property provided by NA Pen Auctions. It is the sole responsibility of a bidder to make arrangements for the inspection of the property.

4.How to Bid

(a)To bid on items you must be a registered user with NA Pen Auctions. A prospective buyer's account must be registered and approved by NA Pen Auctions at our sole discretion, before using our services as a bidder. By bidding, you are entering into a contract to buy the item and to deliver payment within the time period specified.  Bids are final and non-retractable. A bid placed by any Person or agent shall be conclusive proof that such Person or agent acquainted itself with the Terms and Conditions and such Person or agent shall be deemed to have agreed to the Terms and Conditions prior to placing any bid. 

(b)In order to become a registered bidder, the registration shall be provided to the auction house. Registered bidders will be assigned a unique paddle number for the purpose of bidding on lots in the auction; absentee, telephone, or in person paddle numbers may be different than online paddle numbers. Bids can be placed online, via telephone, absentee, and in person during select auctions. Those who are not bidding in person are required to register at least 24 hours in advance of the auction. To participate in online auctions, a bidder must create a password to use in current and future online auctions. This online registration procedure does not allow for participation in the live auction and may require up to two days to complete. Every registered bidder acknowledges that once a bid is made with their paddle it may not be withdrawn without the consent of the auctioneer, who, in their sole discretion, may refuse such consent. Every registered bidder agrees that if a lot is closed on their bid, they are bound to purchase the lot for the purchase price.

5.NA Pen Auctions Liability

Notwithstanding anything to the contrary in the Terms and Conditions, NA Pen Auctions and all of its related parties, affiliates and subsidiaries (including the owners, directors, officers, employees, contractors and agents of all of the foregoing) shall not be liable or responsible for any loss or damages in whatever form, manner or type (including, but not limited to, punitive, aggravated, economic, loss of revenues or profit, exemplary, direct, indirect, incidental, special, accidental or consequential) and howsoever caused (including, but not limited to, negligence) arising from, relating to or in connection with (except as otherwise expressly set out in the Terms and Conditions):

(a)any property, items or lots purchased through NA Pen Auctions;

(b)any property, items or lots purchased through NA Pen Auctions:

(i)at all times while such is in the possession of NA Pen Auctions; and

(ii)at all times after such is in the possession of NA Pen Auctions (including, but not limited to, after the auction closure or completion of a private sale);

(c)any injury or death to any Person arising from, relating to or in connection with any property, items or lots purchased through NA Pen Auctions (including, but not limited to, private sale);

(d)any use, misuse, delivery, shipping, receiving, installation, repair, replacement, resale, storage of any property, items or lots purchased through NA Pen Auctions; 

(e)a seller asserting or claiming it did not provide NA Pen Auctions or an auction house with the authority to auction or sell a property, item or lot or a seller otherwise refusing to complete a sale;

(f)a buyer refusing to complete a sale;

(g)any property, item or lot purchased through NA Pen Auctions is determined to be a fake or replica. 

6.Rights of NA Pen Auctions

NA Pen Auctions retains the right in its sole discretion to:

(a)withdraw a lot from sale, to divide any lot or to combine any two or more lots at any time and without notice to any bidder; 

(b)regulate and control the bidding of a lot to advance the bids for the lot in whatever intervals it considers appropriate for the lot or to halt bidding on the lot, including without limitation the right to refuse any bid; 

(c)open the bidding on any lot below the reserve by placing a bid on behalf of the auction house, may continue to bid up to the amount of the reserve, either by placing consecutive bids or by placing bids in response to other bidders; 

(d)collect a commission and associated fees through its agreement with the consignor of a lot;

(e)agree to reserve;

(f)accept absentee/telephone bids;

(g)have the right at its absolute discretion to refuse admission to its premises or attendance at its auctions by any person;

(h)conclude the sale of a lot and identify the highest bidder as the buyer of the lot.

Additionally, invoices generated during the sale or shortly after may not be error free, and therefore are subject to review and revision by NA Pen Auctions in its sole discretion. 

7.Absentee Bidders

(a)As a service to our clients, remote bidders who are not able to attend the sale in person or online have the option to submit absentee bids. During the live auction, the auctioneer will bid on your behalf. The auctioneer will work to purchase the lot at the lowest possible selling price, bidding up to your maximum amount as required. 

(b)We will accept absentee bids in writing or submitted by email using our ABSENTEE BID FORM.  All bids must state the highest bid price the bidder is willing to pay. "Buy" bids are not accepted. In the event that two identical absentee bids are submitted to NA Pen Auctions, the bid which is received earlier (and which has been submitted through a completed and signed absentee bidding form) will take precedence over the later bid(s), allowing the earlier submitted bid(s) to potentially purchase the lot(s) at bid level submitted. 

(c)All absentee bids must be placed with NA Pen Auctions at least 24 hours prior to the commencement of the sale. 

(d)NA Pen Auctions accepts no responsibility for failure to execute such bids or any errors contained on submitted bid forms.

8.Telephone Bidding 

NA Pen Auctions offers telephone bidding on special request if a perspective bidder is unable to attend the live/online auction, in which case they may contact the auction house for more details. The registered bidder is to complete and submit a TELEPHONE BID FORM request a minimum of 48 hours prior to the commencement of the sale. NA Pen Auctions will confirm receipt by telephone or email. Telephone bidders are encouraged to indicate their maximum bid directly on their form. In the event that the NA Pen Auctions specialist is unable to reach you during the sale, your assigned specialist is hereby permitted to bid on your behalf, up to your maximum bid.  All maximum bids must be in-keeping with NA Pen Auction’s specified bidding increments. 

9.Reserves

While the majority of NA Pen Auction’s lots are unreserved, occasionally, items may carry a moderate reserve. In the case of a reserve item, the seller has authorized the auctioneer to bid on their behalf until the reserve price is reached. NA Pen Auctions does not accept reserves of more than the low estimate nor allow consignors to bid on their own items.

10.Private Sales

(a)NA Pen Auctions offers a wide variety of writing instruments through private sale, which are available for immediate purchase. If you are looking for a particular piece please do not hesitate to contact us. 

(b) The purchase prices listed on items available through private sale are inclusive of the buyer's premium, and are subject to applicable taxes.

11.Bid Increments 

(a)Increments are at the auctioneer's discretion. If a lot does not receive a bid of 50% of the low estimate, the lot will be passed by the auctioneer unless prior consent has been provided by the consignor.  

(b)The following bid increments are a general guideline only (and NA Pen Auctions shall not be liable for any loss, damage or failure to be the winning bidder as a result of or in connection with the following bid increments guidelines: 

12.Bidding: Rights and Responsibilities

(a)The auctioneer reserves the right to determine the highest bidder.  If any dispute should arise between bidders the auctioneer shall have the absolute discretion to designate the buyer or, at the auctioneer’s opinion, to withdraw any disputed lot from the sale or to re-offer it at the same or a subsequent sale. 

(b)Bids placed before the auction take precedence over any live bids. 

(c)When the auctioneer closes each lot, ownership is immediately automatically transferred to the winning bidder who automatically assumes all risk and full responsibility. 

(d)A winning bidder is strongly recommended to purchase property, liability and such other insurance as such winning bidder requires in connection with such items immediately after purchasing them.  

(e)NA Pen Auctions shall not be responsible or liable for any bid errors or omissions, failure to purchase or inadequacy of insurance or technical or other failure associated with the internet, absentee bidding or telephone bidding.

(f)Immediately after the purchase of a lot, the buyer shall pay or undertake to the satisfaction of the auctioneer with respect to payment of the whole or any part of the purchase price requested by the auctioneer, failing which the auctioneer in their sole discretion may cancel the sale with or without re-offering the item for sale. Each lot purchased, unless the sale is cancelled as above, shall be held by NA Pen Auctions at their premises or at a public warehouse at the sole risk of the buyer until fully paid for and retrieved by or on behalf of the purchaser.

(g)NA Pen Auctions will contact successful online bidders 48 hours after the auction with an official invoice. The invoice will include the lot title, hammer price, premium, and any other charges such as shipping. 

13.Buyers Premium

(a)The hammer price is the price for which the lot is sold for. The purchase price to be paid by the buyer to NA Pen Auctions for the lot shall be the total of the following: the hammer price, buyer’s premium and applicable HST (Harmonized Sales Tax), as listed below. A buyer's premium of 24% of the successful hammer price is to be paid by the winning bidder to NA Pen Auctions as part of the purchase price, (a buyer's premium of 29% of the hammer price is to be paid by the successful bidder to NA Pen Auctions as part of the purchase price where Liveauctioneers or other third party bidding platforms are used place the winning bid during an auction). All amounts payable herein shall be paid in Canadian dollars, in immediately available funds, without set-off or deduction of any kind, and any risk or cost of the currency exchange or conversion shall be the responsibility of the buyer.

14.Tax 

(a)All or part of the sales tax may be exempt in certain circumstances if the lot is delivered outside of the jurisdiction of sale of the lot. It is the buyer's obligation to demonstrate, to the satisfaction of the auction house, that such delivery or removal results in an exemption from the relevant sales tax legislation. Shipments outside of the jurisdiction of sale of the lot shall only be eligible for exemption from sales tax if shipped directly by the auction house or by contracted 3rd party shipper. All claims for sales tax exemption must be made prior to or at the time of payment. Sales tax will not be refunded once the auction house has released the lot. The buyer agrees and shall fully indemnify NA Pen Auctions for any amount claimed by any taxing authority due as sales tax upon the sale of the lot, including any related costs, legal fees, interest and penalties.

(b)Taxes are exempt for any items directly shipped from the premises of NA Pen Auctions or through one of NA Pen Auctions’ third party shippers out of Canada.

15.Additional Payment Terms 

(a)All items shall be paid for by cash, Visa, MasterCard, American Express, Discover, wire transfer or certified cheque. E-Transfers are also available to Canadian customers. All invoices over $5,000 must be paid for by wire transfer.

(b)All certified cheques and bank drafts must be verified and cleared by NA Pen Auctions’ bank prior to the release of any purchases for pickup or shipping. Any fee, cost or expense payable by NA Pen Auctions in respect of its receipt of a certified cheque, bank draft or wire transfer shall be paid by the buyer to NA Pen Auctions as part of the purchase price.

(c)In order to prevent inaccuracy in delivery or inconvenience in the settlement of a purchase, no lot can be transferred. Each buyer must pay for the whole of their purchases before any lot can be removed.

(d)The winning bidder shall make arrangements with NA Pen Auctions for the payment of the whole invoiced amount following the immediate close of the auction. Items will not be released for pickup or shipping until the invoice is paid and cleared in its entirety. The purchaser agrees to pay NA Pen Auctions $50 for any returned certified cheque or bank draft. At the sole discretion of NA Pen Auctions, Failure to pay for purchases may lead to the cancellation of the sale, with no promise of re-offering in a future auction. In the event of failure of payment by the successful bidder, NA Pen Auctions reserves the right to suspend and/or delete the bidding account of the bidder. The purchaser is responsible for the payment of all import duties, fees, or taxes, that may be payable on the export of any lot outside of Canada. All purchases must be paid for within 7 days of the end of the auction and picked up or shipped within 14 days of the end of the auction. We reserve the right to charge all cards on file after 7 days if payment has not already been made.

(e)Purchases that have gone unpaid for 14 days following the close of the auction are subject to a five percent (5%) late payment fee and at the sole discretion of NA Pen Auctions the sale could be rescinded as well as buying and selling privileges as well as legal proceedings if deemed necessary. If the buyer has sold items, the funds from the sale of those items may be used by the auction house to pay any outstanding balances. All items must be removed from the auction house within 14 days of the end of the auction, the purchaser assumes full responsibility after the close of the auction and any items held beyond this 14 day period could be subject to storage charges.

16.Shipping and Pickup

(a)NA Pen Auctions is pleased to offer shipping via our in-house shipping department or via a third party shipper. Shipping is at the expense of the purchaser. 

(b)All shipments will be insured for their full purchase price (hammer price plus buyer’s premium) and shipped to the address on file. 

(c)If NA Pen Auctions is to pack and transport the merchandise, it is fully at the risk, responsibility and expense of the purchaser.  NA Pen Auctions will not be responsible or liable for any loss or damage that occurs during the shipping process or the shipment. 

(d)Shipments valued above $5,000 will require third party shipping and private insurance to be purchased by the purchaser and evidence of which is to be delivered to NA Pen Auctions.  

(e)Items are shipped only after payment has been cleared if paid by certified cheque or bank draft. 

(f)Any highly delicate items or large items may be directed to a third party shipper at the discretion of NA Pen Auctions.  Please see a list of third party shippers listed below (which information may be subject to change from time to time):

UPS STORE #3

Address 1750 The Queensway, Etobicoke, Ontario M9C 5H5

Tel (416) 626 2401 Email store3@theupsstore.ca

PakShip 

Address 66 Bullock Dr., Unit 2, Markham, Ontario L3P 3P2

Tel (905) 470 6874 Email taurus@pakship.ca

(g)Pickups are available upon request on the day following the auction close. Please schedule a date and time in advance for pickup, walk-ins will not be permitted. 

(h)All items must be picked up or shipped within fourteen (14) days of the close of the auction.

(i)If purchased property cannot be delivered in the same condition as at the time of sale, due to fire, theft, loss or any other reason, NA Pen Auctions' liability will be limited to the sum actually paid by the purchaser. In no event, will compensatory or other damages be included.

17.Finality of Sale

(a)All sales are final unless otherwise expressly stated in the Terms and Conditions.

(b)Buyers having paid within 7 business days must notify NA Pen Auctions with concerns within three calendar (3) days of receipt of their purchased item. Buyers who have not paid within the 7-day due date are not qualified to return purchases under any circumstances.

(c)Unauthorized returns will not be accepted. 

(d)NA Pen Auctions' liability is limited to the price paid for the item by the purchaser. NA Pen Auctions will issue refunds on items, under certain conditions and in NA Pen Auctions’ sole discretion, where they have been found to be fraudulent, inauthentic or stolen. 

(e)Items are sold as described and as pictured. 

(f)Items will not be refunded due to differing opinions of another Person (including authenticators).  Any flaws that are missed if, and only if, the buyer requests a condition report, will be considered by NA Pen Auctions, but are at the sole discretion of NA Pen Auctions. 

(g)Any item that is new will not be returned under any circumstances if opened or used.

18.Additional Covenants, Representations and Warranties by Sellers, Bidders and Buyers 

(a)Every seller covenants and represents and warrants to and in favour of NA Pen Auctions that every property, item or lot provided for sale through NA Pen Auctions or an auction house:

(i)was not and is not an unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity;

(ii)was not unlawfully offered or provided to or received from, directly or indirectly, any foreign or domestic employee, official or any other like Person; and

(iii)was not in violation of any anti-corruption laws, anti-bribery laws, anti-money laundering laws, economic sanctions laws, export restrictions, anti-boycott regulations, embargo regulations or other similar applicable laws.

(b)Every bidder and buyer covenants and represents and warrants to and in favour of NA Pen Auctions that neither it, nor any of its agents or other Persons associated with or acting on its behalf will:

(i)use any property, item or lot purchased through NA Pen Auctions or an auction house for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity;

(ii) unlawfully offer or provide, directly or indirectly, any property, item or lot purchased through NA Pen Auctions or an auction house to any foreign or domestic government employee, official or any other like Person; or

(iii) in connection with any property, item or lot purchased through NA Pen Auctions or an auction house (including, but not limited to, the payment of the purchase price), directly or indirectly, take any action in violation of any anti-corruption laws, anti-bribery laws, anti-money laundering laws, economic sanctions laws, export restrictions, anti-boycott regulations, embargo regulations or other similar applicable laws.

19.Binding Arbitration

(a)Any dispute, controversy or claim arising out of, relating to, or in connection with the Terms and Conditions or the breach, termination or validity thereof (collectively, a “Dispute”) shall first be submitted for mediation as follows:

(i)any party to the Dispute shall serve notice on the others of its desire to resolve the Dispute by mediation;

(ii)the mediator shall be appointed by agreement between the parties or, if the parties cannot agree within five business days after receipt of the notice of intention to mediate, the mediator will be appointed by the Canadian Arbitration Association;

(iii)the mediation will be held in Toronto, Ontario, Canada;

(iv)the Parties agree to attempt to resolve their dispute at such mediation;

(v)the costs of the mediator and the mediation shall be shared equally by the parties and regardless of resolution and whether or not the Dispute is resolved; and 

(vi)if the dispute has not been resolved within 60 business days of the notice of desire to mediate, any party may terminate the mediation and proceed to arbitration as set out in section 17(b).

Notwithstanding anything in the foregoing shall preclude any party from seeking injunctive relief in the event that the party reasonably perceives that, without such injunctive relief, serious harm may be done to the party. 

(b)If the Dispute is not resolved pursuant to section 17(a), the Dispute will be resolved by binding arbitration at the Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration as follows:

(i)the arbitration shall be conducted by a single arbitrator;

(ii)the arbitration shall be held in Toronto, Ontario, Canada;

(iii)the arbitration shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario);

(iv)the decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom;

(v)judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction; and 

(vi)the costs of the arbitrator shall be divided equally between the parties.

20.General

(a)Entire Agreement

The Terms and Conditions constitute the entire agreement between the parties pertaining to the subject matter of the Terms and Conditions and supersedes all prior agreements and discussions, whether oral or written, of the parties.  There are no representations, warranties or other agreements, whether oral or written, between the parties in connection with the subject matter of the Terms and Conditions except as specifically set out in the Terms and Conditions.  

(b)Waiver

No waiver of any provision of the Terms and Conditions shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.  No forbearance by any party to seek a remedy for any breach by any other party shall constitute a waiver of any rights or remedies with respect to any subsequent breach.

(c)Applicable Law

The Terms and Conditions shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario and shall be treated in all respects as an Ontario contract.  Each of the parties irrevocably attorns to the jurisdiction of the courts of the Province of Ontario.

(d)Invalidity

If any part of the Terms and Conditions is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such part shall not affect the validity, legality or enforceability of any other part of the Terms and Conditions or the balance of any part of the Terms and Conditions absent such part and such invalid, illegal or unenforceable part shall be deemed to be severed from the Terms and Conditions and the Terms and Conditions shall be construed and enforced as if such invalid, illegal or unenforceable part had never been inserted in the Terms and Conditions

(e)Time

Time shall be of the essence and no extension or variation of the Terms and Conditions shall operate as a waiver of this provision.

(f)Assignability

Only NA Pen Auctions may assign the Terms and Conditions to any Person provided that prior written notice is given.    

(g)Binding Effect

This Agreement shall enure to the benefit of and shall be binding upon the parties and their respective successors, permitted assigns, heirs, executors and administrators.