SOLD
230.00USD+ (46.00) buyer's premium + applicable fees & taxes.
This item SOLD at 2006 Jan 02 @ 22:37UTC-5 : EST/CDT
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Lot of Two Toned Battle Creek Morgans. Obverse toned 1886 NGC MS63* & Reverse toned 1886 NGC MS63*. Wonderful sky blue iridescence with other colors thrown into the mix as well.<p><i>The Battle Creek Collection, Part IV</i>
Auction Location:
Wyndham Orlando Resort, 8001 International Drive, Orlando, Florida, United States
Previewing Details:
Location Wyndham Orlando Resort 8001 International Drive Orlando, FL 32849 (407) 351-2420 Lot Viewing Baltimore Coin Show Superior Tables 557-558 December 8 through December 10, 2005 9am to 6pm Lot Viewing Wyndham Orlando Resort 8001 International Drive Orlando, FL 32849 (407) 351-2420 December 30, 2005 through January 2, 2006 9am to 6pm
See terms and conditions
Buyer's Premiums:
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20% |
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Auction Terms and Conditions
NOTE: A Buyer's Commission of twenty percent (20%) will be added to all successful bids made via eBay (www.ebay.com) and/or eBay Live Auctions (www.ebayliveauctions.com) or a minimum Buyer’s Commission of $9.00 dollars which ever is greater. All internet bids made through Superior's website (www.sgbh.com and/or www.sgbh.com) will be charged a twenty percent (20%) Buyer's Commission or a minimum Buyer’s Commission of $9.00 dollars which ever is greater.
1. This is a public auction sale conducted by bonded Auctioneers. The bonded Auctioneer is Superior Galleries, Inc. (hereinafter referred to as "Auctioneer" and at times as "Superior").
2. Bidding in this sale constitutes acceptance by you of all the Terms and Conditions of Sale stated herein, ("Bidder). Bidders include Consignors who retain their lots pursuant to their consignment agreement with Superior.
3. Superior reserves the right to include in any auction sale its own material as well as material from affiliated or related companies, principals, officers or employees. Superior may have direct or indirect interests in these, or other items, and may collect commissions. THIS PARAGRAPH SHALL BE DEEMED A PART OF THE DESCRIPTION OF ALL LOTS CONTAINED IN THE CATALOGUE.
4. Bidder acknowledges as follows: Grading is an art and not a science. The grade and estimated value herein represents the opinion of Superior or its Consignor(s). It is possible that two people will not always grade the same item alike. Also, as market conditions change, grading standards change, and will most likely continue to do so in the future. Each Bidder's own examination of the item(s) is the criterion and not the grade represented by another. Every effort is made by Superior to determine provenance and authenticity. It is the Bidder's responsibility to arrive at a final conclusion prior to bidding. In any purchase or sale, the value of the item(s) is determined by the price. THE BIDDER HEREBY ASSUMES ALL RISKS OF VALUE CONCERNING ANY AND ALL PURCHASES.
5. Pursuant to a separate agreement with Superior, Consignors or their agents may be permitted to bid on their own lots in the sale and may receive a rebate commission in whole or part if successful. Where the Consignor has re-purchased a lot and the lot is either returned to the Consignor or otherwise dealt with or disposed of in accordance with the Consignor's direction, or pursuant to contractual agreement, Superior reserves the right to so note in the prices realized or to omit a price from the price realized.
6. Superior may at its sole and absolute discretion, make loans or advances to Consignors and/or Bidders.
7. Superior may bid for its own account at any auction. Bidder acknowledges and agrees that Superior may not be required to pay a Buyer's Commission, or other charges that other Bidders may be required to pay and may have access to information concerning the lot(s) that is not otherwise available to the public. Any claimed conflict of interest or claimed competitive advantage resulting therefrom is expressly waived by all participants in the Sale.
8. Lot(s) may carry a Reserve. A Reserve is a confidential price or bid below which the Auctioneer will not sell an item or will re-purchase on behalf of the Consignor or for Superior. Estimates given are for the general guidance of the bidder and represent the opinion of the auctioneer as the fair market value of the numismatic item at the time of cataloging, based on experience and comparable sale, if applicable. The price realized may be higher, or lower than the estimate. If a lot is reserved, the reserve may not exceed the maximum estimated price.
9. The Auctioneer may open or accept the bidding on any lot by placing a bid on behalf of the Consignor or his or her agent; a Bidder by mail, telephone or telefax; or any other participant in the Sale. The Auctioneer may accept or decline any bid, challenge to any bid or bidding increment, as the Auctioneer in their sole discretion shall determine. Bids must be for an entire lot and each lot constitutes a separate sale. No lot will be broken up unless otherwise permitted by the Auctioneer. Lots will be sold in their numbered sequence unless Auctioneer directs otherwise.
It is unlawful and illegal for Bidders to collude, pool, or agree with another Bidder to pay less than the fair value for lot(s). Bidders in the Sale acknowledge that the law provides for substantial penalties in the form of treble damages and attorneys' fees and costs for those who violate these provisions.
10. All material shall be sold in separate lots to the highest Bidder as determined by the Auctioneer. If any dispute arises, Auctioneer shall have the right to rescind the acceptance of the bid and place the lot(s) for Sale again. Auctioneer's decision shall be final. For the Mail Bidder's protection, no "unlimited" or "buy" bids will be accepted.
When identical bids are received for a lot, preference is given to the first bid received as determined by the Auctioneer. A mail bid will take precedence over an identical floor bid; a Floor Bidder and Telephone Bidder must bid higher than the highest mail bid to be awarded any lot. Auctioneer reserves the right to refuse any bid, to reduce any mail bid received, to open the bidding of a lot at any level deemed appropriate by the Auctioneer and to determine the prevailing bid, at his sole discretion.
11. All persons seeking to bid must have a catalogue and register to bid at the auction by completing a registration card or bid sheet. By submitting a bid, the Bidder acknowledges receipt of the catalogue. The Bidder further acknowledges that Bidder has read the Terms and Conditions of Sale, the descriptions for the lot(s) on which they have bid, and that they agree to adhere to these Terms and Conditions of Sale. This agreement shall be deemed to have been made in California. The Bidder acknowledges that the invoice describing a lot by number incorporates the catalogue and Terms and Conditions of Sale.
12. A Buyer's Commission of fifteen percent (15%) on each individual lot will be added to all purchases made by non-internet Bidders or a minimum Buyer’s Commission of $9.00 dollars which ever is greater, except for reacquisitions by Consignors, regardless of affiliation with any group or organization, and will be based upon the total amount of the final bid. A reacquisition charge may apply to Consignors pursuant to a separate agreement, which may be higher or lower than the Buyer's Commission. A Buyer's Commission of twenty percent (20%) will be added to all successful bids made via eBay (www.ebay.com) and/or eBayLiveAuctions (www.ebayliveauctions.com) or a minimum Buyer’s Commission of $9.00 dollars which ever is greater.. All internet bids made through Superior's website (www.sgbh.com and/or www.superiorgalleries.com) will be charged a fifteen percent (15%) Buyer's Commission or a minimum Buyer’s Commission of $9.00 dollars which ever is greater..
13. Unless otherwise agreed in writing, auction sales are strictly cash in U.S. funds payable through a bank in the United States. On any cash transaction or series of transactions exceeding $10,000, Treasury Form 8300 will be filed. Contact Superior for wiring instructions before sending a wire. Lots must be paid for the earlier of receipt of invoice or delivery. Superior reserves the right to decline to release lots for which good funds have not yet been received. On any accounts past due, Superior reserves the right to extend credit and impose periodic charges. Bidder agrees to pay reasonable attorneys' fees and costs incurred to collect on such past due accounts.
14. Bids will not be accepted from those persons under eighteen (18) years of age without a parent's written consent which acknowledges the Terms and Conditions of Sale herein and agrees to be bound thereby on behalf of the Bidder.
15. Bidders personally and unconditionally guarantee payment that are or become owed to Superior. If a corporation is the Bidder, the corporate representative present at the sale shall provide Superior at the time of registration with a statement signed by each principal, director and officer that they each personally and unconditionally guarantee any and all current or future obligations owed to Superior.
16. Bidders who have not established credit with Superior must furnish satisfactory credit references or deposit at least twenty-five percent (25%) of their total bids for that Auction Sale session(s) or such other amounts as Superior may, in its sole and absolute discretion, require before such bids will be accepted. Deposits submitted will be applied to purchases. Any remaining deposits will be promptly refunded, upon clearance of the funds.
17. THIS IS NOT AN APPROVAL SALE. Bidders who physically attend the Auction Sale, either personally or through an agent ("Floor Bidders") should carefully examine all lots which they are interested in purchasing. Bidders who bid by telephone, either personally or through an agent, receive a similar benefit as Floor Bidders in being able to actively participate in the live Auction Sale (Telephone Bidders"). Therefore, except as otherwise provided in these Terms and Conditions of Sale, NO LOT MAY BE RETURNED THAT IS PURCHASED BY A FLOOR BIDDER, A TELEPHONE BIDDER, ANY OTHER BIDDER WHO HAS HAD AN OPPPORTUNITY TO VIEW THE LOT(S), OR ANYONE PRESENTING SUPERIOR WITH A RESALE CERTIFICATE OR OTHER EVIDENCE THAT THEY ARE ACTING AS A DEALER.
For Bidders by mail or telefax, who have not had the opportunity to view the lot(s), if there is a material error in the catalogue description, the lot may be returned if written notice is received by Superior within five (5) calendar days of receipt of the lot(s). The lot(s) must be received by Superior no later than twenty-one (21) calendar days after the Auction Sale in the same condition the lot(s) were delivered to the Bidder, in their original containers. Late remittance constitutes just cause for revocation of all return privileges.
18. All prospective Bidders who have had the opportunity to examine the lot(s) prior to the Auction Sale, personally assume all responsibility for any damage that Bidder causes while handling or examining lot(s). Superior shall have sole discretion in determining the value of the damage caused, which shall be promptly paid by the prospective Bidder.
19. SUPERIOR IS NOT RESPONSIBLE FOR ANY ERRORS IN BIDDING. A Bidder should make certain to bid on the correct lot and that the bid is the maximum plus the Buyer's Commission (15% for non-internet bids, 20% for internet bids) that he or she is willing and able to pay. Once the hammer has fallen and the Auctioneer has announced the winning Bidder, the Bidder is unconditionally bound to pay for the lot, even if the Bidder has made a mistake.
20. Superior will not assume responsibility for the shipping and packaging of certain larger items or items of a more fragile nature sold in this sale as determined by Superior. It is the Bidder's responsibility to contact Superior after the sale to make shipping and packaging arrangements. Due to the fragile nature of some lots, Superior may be forced to charge additional shipping and handling. Lots indicated as being "framed" are shipped at the Bidder's risk.
20. DISCLAIMERS AND WARRANTIES
ALL ITEMS OFFERED IN THIS CATALOGUE ARE GUARANTEED TO BE AUTHENTIC. THIS IS A LIMITED WARRANTY THAT THE ITEM SOLD IS NOT COUNTERFEIT, THAT ITS DATE OR MINTMARK HAS NOT BEEN ALTERED, AND THE ITEM HAS NOT BEEN "REPAIRED." ANY OTHER WARRANTY IS EXPRESSLY DISCLAIMED; THERE IS NO REPRESENTATION OR WARRANTY THAT A NUMISMATIC ITEM HAS OR HAS NOT BEEN CLEANED; THAT ANY TONING IS NATURAL OR ARTIFICIAL; THAT ANY ITEM WILL MEET THE STANDARDS OR GRADE OF ANY INDEPENDENT GRADING SERVICE; THAT ANY ITEM HAS A PARTICULAR PROVENANCE OR PEDIGREE, OR THAT AN ITEM IS STRUCK OR PRODUCED IN A PARTICULAR STYLE. ANY STATEMENT CONCERNING THIS IS A MATTER OF OPINION ONLY. NO WARRANTY, WHETHER EXPRESSED OR IMPLIED, INCLUDING A WARRANTY OF MERCHANTABILITY IS MADE WITH RESPECT TO ANY GRADE DESCRIPTION WHICH IS ONLY AN OPINION THAT IS LIKELY TO DIFFER, EVEN AMONG EXPERTS. PURCHASER HEREBY ASSUMES ALL RISKS CONCERNING AND RELATED TO THE GRADING OF A LOT.
a. All sales of items (1) viewed by Bidders in advance of a sale, even if the sale is by mail or telefax; or (2) bid upon by Floor Bidders, Telephone Bidders and Bidders who present Superior with a resale certificate, out of state resale certificate, or similar evidence in acting as a dealer; ARE FINAL AND MAY NOT BE RETURNED.
b. Any and all claims that an item is not authentic, must be made in writing to Superior within five (5) calendar days after receipt of the item.
c. If an item or items are returned pursuant to the terms herein, they must be housed in their original, sealed and unopened container.
d. Late remittance or removal of any item from its original container constitutes just cause for revocation of all return privileges.
e. Grading or condition of rare coins may have a material effect on the value of the item(s) purchased; and the opinion of others (including independent grading services) may differ with the independent grading services opinion or interpretation of Superior. Superior shall not be bound by any prior, or subsequent opinion, determination or certification by any independent grading service.
f. Questions regarding the minting of a coin as a "proof" or as a "business strike" relate to the method of manufacture and not to authenticity.
g. All oral and written statements made by Superior and its employees (including affiliated and related companies) are statements of opinion only, and are not warranties or representations of any kind, unless stated as a specific written warranty, and no employee or agent of Superior has authority to vary or alter these Terms and Conditions of Sale. Any alteration shall be effective only if in writing and signed by an officer of Superior authorized to do so.
h. Bidders shall have no recourse against the Consignor for any reason whatsoever.
i. Notwithstanding anything to the contrary in these Terms and Conditions of Sale, COINS LISTED IN THIS CATALOGUE GRADED BY PCGS, NGC OR ANACS CACHET, OR ANY OTHER THIRD PARTY GRADING SERVICE MAY NOT BE RETURNED FOR ANY REASON WHATSOEVER.
22. Superior reserves the right to withdraw any lot at any time, even after the hammer has fallen, until the Bidder has taken physical possession of the lot. No Bidder shall have a right to claim any consequential damages if a lot is withdrawn, even after the auction sale. Auctioneer will have the final discretion to determine the successful bidder, cancel the sale, withdraw the item, or to reoffer and resell the article during or in a future sale or return it to the consignor. If any dispute arises after the sale, the Auctioneer's decision is conclusive.
23. Taxes, postage, freight charges, if applicable, handling, insurance, Buyer's Commission, and any other fees required by law to be charged or collected will be added to the invoice for any lot(s) that is invoiced to successful Bidders. On any tax not paid by Bidder which should have been paid, even if not collected by Superior by mistake, error, negligence or gross negligence, Bidder agrees to promptly pay the same on demand together with any interest or penalty that may be assessed.
24. Bidder grants to Superior or its assigns the right to offset any sums due, or found to be due to Superior, and to make such offset from any past, current, or future consignment; purchases that are in the possession or control of Superior; or from any sums due to Bidder by Superior. Bidder further grants Superior a purchase money security interest in such sums or items to the extent applicable. Bidder agrees that Superior and its assigns shall be a secured party with respect to items bought by Bidder and in the possession of Superior, to the extent of the maximum indebtedness, plus all accrued expenses attorney fees and costs, until the indebtedness is paid. Bidder grants Superior the right to file a UCC on such items without need for Bidders signature, and to assign such interest to any affiliated or related company or any third party deemed appropriate by Superior.
25. In the event a successful Bidder fails to make payment when due, Superior reserves the right to resell the lot(s) in a commercially reasonable manner, which may include a private sale. Bidder agrees to pay for the reasonable cost of such a sale, together with any incidental costs of sale, including reasonable attorneys' fees and costs, cataloguing and any other reasonable charges.
26. If the auction invoice is not paid for in full when due per invoice terms, the unpaid balance will earn interest at the rate of one-and-one-half percent (1-1/2%) per month until it is paid in full. In the event this interest rate exceeds the interest permitted by law, the same shall be adjusted to the maximum rate permitted by law. Bidder agrees to pay all reasonable attorneys' fees, court costs and other collection costs incurred by Superior or any affiliated or related company to collect past due invoices. Superior reserves the right to assign its interest to any third party.
27. Bidder expressly consents to the following Waiver and Release:
Bidder, for himself, his heirs, agents, successors and assigns, generally and specifically waives and releases, and forever discharges Superior, and its respective affiliates, parents, shareholders, agents, subsidiaries, employees, members of their respective boards of directors, and each of them, and their respective successors and assigns from any and all claims, rights, demands and causes of action and suits, of whatever kind or nature, whether in law or equity, whether known or unknown, suspected or unsuspected, which Bidder may claim to have with respect to and/or arising out of, or in connection with any challenge to the title to any goods purchased, the sale itself, and/or the auction, except where such reimbursement is otherwise authorized in these Terms and Conditions of Sale.
It is the intention of Bidder that this waiver and release shall be effective as a bar to each and every claim, demand, cause of action and suit that may arise hereunder, and Purchaser hereby knowingly and voluntarily waives any and all rights and benefits otherwise conferred upon him by the provisions of Section 1542 of the California Civil Code, which reads in full as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
28. Title to any lot remains with Consignor, any secured party of the Consignor, or Consignor's assigns, as the case may be, until the lot is paid for in full by Bidder. Superior reserves the right to require payment in full before delivering any lot to the successful Bidder.
29. It is the Bidder's responsibility and obligation to have the lots fully insured while in his or her possession. Bidder assumes any and all RISK OF LOSS while the lot(s) is in Bidder's possession.
30. If a dispute arises concerning ownership of a lot that has been bid upon, Superior reserves the right to commence a statutory interpleader proceeding at the expense of the Consignor and successful Bidder and any other applicable party, and in such event shall be entitled to its reasonable attorneys' fees and costs.
31. All photographs in this catalogue are of the actual items being sold but may not be the actual size or to scale.
32. Superior reserves the right to postpone the auction sale or any session thereof for a reasonable period of time for any reason whatsoever. No Bidder shall have any claim as a result thereof, including incidental or consequential damages.
33. Neither Superior nor any affiliated or related company shall be responsible for incidental or consequential damages arising out of any failure of the Terms and Conditions of Sale, the auction or the conduct thereof and in no event shall liability for any such failure exceed the purchase price, premium, or fees paid.
34. Rights granted to Bidders under the within Terms of Conditions of Sale are personal and apply only to the Bidder who initially purchases the lot(s) from Superior. The rights may not be assigned or transferred to any other person or entity, whether by sale of the lot(s), operation of law or otherwise. Any attempt to assign or transfer any such rights shall be absolutely void and unenforceable. No third party may rely on any benefit or right conferred by these Terms and Conditions of Sale.
35. If the Bidder fails to comply with one or more of these Terms and Conditions of Sale, then, in addition to all other remedies which it may have at law or in equity, Superior may at its sole option, either (a) cancel the sale, retaining all payments made by Bidder as liquidated damages, it being recognized that actual damages may be speculative or difficult to compute, or (b) sell a portion or all of the lot(s) held by Superior, in a quantity sufficient in the opinion of Superior to satisfy the indebtedness, plus all accrued charges. More than one such sale may take place at the option of Superior. Notice of the sale shall be by U.S.P.S. Certified Mail, Return Receipt Requested to the address utilized on the Bid Sheet, Auction Consignment and Security Agreement or other last known address by Superior. Such sale will be at Superior's standard commission rates at public or private sale. The proceeds shall be applied first to the satisfaction of any damages occasioned by Bidder's breach, then to any other indebtedness owed to Superior, including without limitation, commissions, handling charges, the expenses of both sales, reasonable attorneys' fees, costs, collection agency fees and costs and any other costs or expenses incurred. Bidder is also liable to Superior if the proceeds of such sale or sales is insufficient to cover the indebtedness.
36. These Terms and Conditions of Sale and the auction shall be construed and enforced in accordance with, and governed by, the laws of the State of California, regardless of the location of the Auction Sale.
Bidder acknowledges and agrees that the competent courts of the State of California shall have exclusive jurisdiction over any dispute(s) arising hereunder, and Bidder hereby agrees that any dispute arising hereunder shall be litigated exclusively in the courts of the State of California, regardless of any party's current or future residence or domicile. Bidder further agrees that venue shall be in the Superior Court for Los Angeles County, in the State of California.
37. If any section of these Terms and Conditions of Sale or any term or provision of any section is held to be invalid, void, or unenforceable by any court of competent jurisdiction, the remaining sections or terms and provisions of a section shall continue in full force and effect without being impaired or invalidated in any way.
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Shopping Cart Terms of Sale
Purchaser acknowledges that the goods described herein are sold, received and accepted pursuant to the terms and conditions of sale specified below. Acceptance is limited to the terms and conditions of sale set forth herein. The goods described may have been graded. Purchaser acknowledges that any such grades are subjective in nature and are only a qualified statement of the Seller's good faith opinion and do not constitute a warranty of any kind.
PURCHASER ACKNOWLEDGES THAT THE GOODS SPECIFIED HEREIN ARE SOLD 'AS IS' AND THAT SELLER MAKES NO WARRANTIES (INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE GOODS DESCRIBED HEREIN UNLESS EXPRESSLY SET FORTH HEREON IN WRITING.
1. Payment Terms. All sales are PAYABLE IN GOOD FUNDS AT THE TIME OF DELIVERY unless otherwise indicated on the face of the invoice. Payments on an approved open account are due and payable on the 10th of the month following the purchase. In case of transfer of business by Purchaser, insolvency of Purchaser, or suit or action against Purchaser by any creditor, then the account becomes immediately due and payable. All payments apply first to accrued service charges, then to costs and attorneys' fees, expenses and penalties, and then to the oldest past due invoices.
2. Service Charge. Amounts unpaid pursuant to the terms and conditions set forth herein are past due and incur a SERVICE CHARGE of 1.5% per month (an annual percentage rate of 18%). Service charges are compounded monthly.
3. Collection. If the account is referred to an attorney for collection, then Purchaser agrees to pay reasonable attorneys' fees and court costs. A $25 charge is assessed on each return check. Purchaser agrees to pay expenses incurred in realizing on security interests, and all penalties assessed by law.
4. Cancellations. An order shall not be cancelled except by mutual consent, or as otherwise permitted by law.
5. Shipment/Ownership/Security Interest. Unless otherwise stated on the face of the invoice, Seller is only required to deliver the goods described on the face of the invoice ('Goods') to a carrier at place of shipment and is not required to deliver goods to destination. If the Purchaser has paid for the Goods, then after Seller delivers the Goods to the Carrier, costs incurred and risks of loss are for Purchaser's account. If the Purchaser has not yet paid for the Goods, the Goods remain the property of Seller until paid for, and shall be returned to Seller upon demand. The Goods until returned to Superior and actually received, is at Purchaser's own risk. Purchaser agrees that Seller retains a security interest in the Goods until Seller is paid in full. Purchaser will sign any documents and payoff fees necessary to perfect Seller's security interest.
6. Acceptance. Unless the Goods are purchased in an auction sale, acceptance is limited to the terms of sale set forth herein in this invoice and Seller objects to any additional terms of the Purchaser. No salesperson or agent of the Seller, other than the Seller's president or vice president has any authority to change the terms and conditions of sale specified in this invoice. Changes to the terms and conditions of sale specified in this invoice shall not be effective unless set forth in writing and signed by the Seller's President or Vice-President. Purchaser is prohibited from selling, pledging, hypothecating or otherwise disposing of the Goods, until full payment has been received by the Seller.
7. Auction Sale. If the Goods are purchased in an auction sale conducted by Seller, then the Purchaser agrees to also be bound by the Terms and Conditions set forth in the Auction Catalogue that pertains to that auction sale. To the extent that the terms set forth herein conflict with those set forth in the Auction Catalogue, the terms set forth in the Auction Catalogue control. The Purchaser can obtain a copy of those Terms and Conditions by contacting Seller at the address or telephone number set forth on the face of the Invoice.
8. Purchase is Not For Consumer Use. The Purchase of the Goods is not for personal, family, or household use.
9. Law. The terms of sale shall be construed in accordance with California law. Purchaser agrees that this sale represents an arm length transaction and that any claim or controversy arising out of or relating to the formation, interpretation or performance of this agreement and underlying transaction, or breach thereof, is subject to judicial proceedings in the County of Los Angeles. The prevailing party in any judicial proceeding shall be entitled to an award of reasonable attorneys' fees and costs.