NOT SOLD (BIDDING OVER)
0.00USD
This item WAS NOT SOLD. Auction date was 2019 Jun 20 @ 13:00UTC-04:00 : AST/EDT
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Watercolor on paper. Featuring a landscape scene. Signed S. Eastman and inscribed 1849. Evidence of water damage on verso. Attributed to Seth Eastman (American, 1808-1875). 18 x 25 cm (7.1 x 9.8 inches). PROVENANCE: Private American collection (Colorado, United States)
Seth Eastman (American, 1808-1875) was a painter and soldier best known for his depictions of the everyday life of Dakota and Ojibwe people around Fort Snelling in the 1840s. He stands out among other nineteenth-century American artists—particularly those who also painted American Indian people—because of his commitment to realism. Unlike his peers, Eastman mostly avoided romanticizing the Native people with whom he lived. Seth Eastman was born in 1808 in Brunswick, Maine. He attended the U.S. Military Academy at West Point, where he was trained in topographical drafting and sketching. After graduation, he was sent first to Fort Crawford in Wisconsin and then to Fort Snelling in Minnesota. In 1830, during his first tour at Fort Snelling, Eastman married a Bdewaka?tu?wa? Dakota woman named Waka? Inazi? Wi? (Woman Who Stands Sacred). She was a daughter of Ma?piya Wic?a??a (Cloud Man), leader of the village at Bde Maka Ska (White Earth Lake, formerly known as Lake Calhoun). The couple had a daughter named Waka? Tanka Wi? (God Woman/Great Spirit Woman). Waka? Tanka Wi?—called Nancy or Mary Nancy in English—was the mother of author and lecturer Ohiyesa (The Winner, called Charles Alexander Eastman in English). After his first tour was completed, in 1833, Eastman left his new family and returned to West Point to teach drawing. Soon afterward, without officially separating from Waka? Inazi? Wi?, he married Mary Henderson, a military surgeon’s daughter, in New York. She published a number of books and essays, most illustrated by Eastman. During Eastman’s time as a teacher, he published a Treatise on Topographical Drawing. He also became an increasingly skilled oil painter. Most of his paintings from this period were landscapes made around West Point, but he also created paintings based on previous sketches made during his time in Minnesota, like Fort Snelling on the Mississippi Near the Falls of St. Anthony. After being briefly stationed in Florida in the summer of 1840, Eastman returned to Fort Snelling. Between 1841 and 1848, he served as commander of the fort four times. He also produced a large number of oil paintings, drawings, and watercolors of his surroundings and the Native people of the area. Both Seth and Mary built strong relationships with their Dakota and Ojibwe neighbors and learned their languages. In 1848, Eastman was transferred to Texas and stayed there until 1849. He left Texas in September of that year and was granted a five-month leave to go to Washington. There, he worked on the illustrations for Henry R. Schoolcraft’s Historical and Statistical Information Respecting the History, Condition, and Prospects of the Indian Tribes of the United States. The first volume was published in 1851. For this work, Eastman created eighty-five compositional drawings of Native life and more than 180 drawings of artifacts and maps. The subjects of these drawings included weapons, tools, clothing, pictographs, landscape views, and ceremonies. The images were then reproduced as engravings or colored lithographs for publication. Soon after he arrived in Washington, Eastman was asked by congressional delegate Henry Sibley to help design the Minnesota territorial seal. Eastman took on the job, and his version was adopted. From 1855 to the outbreak of the Civil War, Eastman was stationed throughout the country. In 1861, he was made a mustering and disbursing officer for Maine and New Hampshire. He officially retired in December of 1863. In 1867, Congress passed a joint resolution authorizing Eastman to paint decorations for the rooms of the committees on Indian affairs and military affairs in the House and Senate. He painted nine canvases for the House Committee on Indian Affairs—largely based off his work for Schoolcraft’s books—that can still be found in the U.S. Capitol building. Eastman also painted seventeen military forts for the House Committee on Military Affairs between 1870 and his death in 1875. He died of a stroke while painting his beloved alma mater, West Point.
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| 0.00 |
Infinite |
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13. SOLD & UNSOLD LOTS - STORAGE AND DISPOSITION
a) Purchaser further agrees, as does consignor for all unsold lots, that any lots not removed from the premises within five (5) days after auction will be subject to storage charges of $5.00 per day, not to exceed $20.00 per month. We disclaim all responsibility for items stored with us beyond 365 days from the time of sale, at which point purchaser shall be deemed to have abandoned same to us for our benefit, for use as we see fit, including listing at auction solely for our benefit, or discarding, or taking any other action, again, at our discretion.
b) Unsold Lots are to be collected at consignor's expense within five (5) days after an unsuccessful auction, or within the week of receiving notice from the Auction House. Storage charges shall apply, as set forth above. If the unsold lots are not removed from our premises on request, the Auction House shall also have the right to sell such Lots by public or private sale and on such terms as the Auction House shall alone determine, and shall deduct from the Proceeds of Sale any sum owing to the Auction House or to any associated company of the Auction House including Expenses, before remitting the balance to the Consignor. If the Consignor cannot be traced, the Auction House shall place the funds in a bank account in the name of the Auction House for the Consignor.
c) Lots returned at the Consignor's request shall be returned at the Consignor's risk and expense and will not be insured in transit unless the Auction House is otherwise instructed by the Consignor and arrangements are made for the Consignor regarding same, with the Consignor bearing all related expenses;
d) If any Lot is unsold by auction, the Auction House may elect to act, at its sole discretion, as the exclusive agent for the Consignor for a period of ninety (90) days following the auction to sell such Lot by private sale or auction sale for a price that will result in a payment to the Consignor of not less than the net amount (i.e., after deduction of the Seller's Commission and Expenses) to which the Consignor would have been entitled had the Lot been sold at a price equal to the agreed Reserve, or for such lesser amount as the Auction House and the Consignor shall agree. In such event, the Consignor's obligations to the Auction House hereunder with respect to such a Lot are the same as if it had been sold at auction. The Auction House shall continue to have the exclusive right to sell any unsold Lots after the said ninety (90) day period, until such time as the Auction House is notified in writing by the Consignor that such right is terminated.
14. IMPORT AND EXPORT LAWS AND RESTRICTIONS
We are an Ontario based business selling items within Ontario. However, certain items sold to us, through us or by us, may be subject to laws governing export from Ontario (including, but not limited to, the provisions of the Cultural Property Export and Import Act and/or The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act), or other jurisdiction where the item is located, such that special permits are required before such goods are permitted to leave Ontario and/or the items jurisdiction and before any item is imported into any other jurisdiction. It is your sole responsibility to check with the relevant government authorities, prior to bidding, to determine whether there are any restrictions that affect export of the item you're bidding on or import restrictions in the jurisdiction you intend to ship it to. On some items, it may be possible to obtain such permits, while on other items, it will likely be impossible (effectively limiting the market for the goods to Ontario alone). If you are unsure regarding any item, you should satisfy yourself by making inquiries to a customs broker you retain and/or by making investigation to the appropriate government authorities, prior to purchase. We are unable to, and do not, guarantee that you will be able to export any item or items from Ontario, or that any item purchased will not require one or more permits or permissions to ship outside of Ontario or to ship to another jurisdiction or that same is even possible. It is solely your responsibility to obtain any relevant export or import licenses, and you agree to ensure any item purchased is imported into your jurisdiction as required by law. As an additional service, and for an additional fee, 888 Auctions Inc. may, at the discretion of 888 Auctions Inc., be retained to assist you in attempting to obtain the necessary export permit, though no guarantee is made of success. All lots purchased shall be paid for, regardless of whether you later learn that you will not be able to export the item or will otherwise experience difficulty or be unable to ship to your desired destination due to export and/or import restrictions. You acknowledge that any delay or denial of any export or import license shall not be grounds to set aside or reverse any sale or otherwise delay in making full payment. We have made no representations, given no warranties, and accept no liability to the seller, the buyer, or any third party in respect to the propriety of a certain item or items for export, the availability or feasibility of obtaining export permits or exercises of pre- emption or other rights to purchase by governmental or regulatory authorities anywhere.
15. WEBSITE USE AND ACCESS
The Web Site may be used only by persons who have reached the age of majority or legal age in their jurisdiction and who can form legally binding contracts under applicable law. The Web Site may not be used by persons in jurisdictions where access to or use of the Web Site or any part of it may be illegal or prohibited. It is solely your responsibility to determine whether your use of the Web Site is lawful, and you must comply with all applicable laws.
We may, in our sole discretion, change, suspend or terminate, temporarily or permanently, our website, the services provided or any part of it or any feature at any time, for any reason, and without notice or liability to you or any other person. Likewise, at any time, we may, for any reason, with or without cause, in our sole discretion, immediately suspend or terminate (in whole or in part) your permission to use our website, the services, your login name and password, all without any notice or liability to you or to any other person.
16. WEBSITE - LIMITATIONS
While we hope to make the use of our website an enjoyable experience, and an effective way to purchase the products and/or services offered by us, we are unable to offer assurances that it will work properly, at all, or as intended, and are therefore unable to accept any liability for your use of our website, or inability to use same.
17. LOG IN AND PASSWORD
Website accounts may be accessed only by use of a unique login/username and password, but we retain access to all information contained within your account. Your login/username and password may not be shared by you. You (or your employer, if you use the Web Site on behalf of your employer) are solely responsible and liable for any use and misuse of your login/username and password and for all activities that occur under your login/username and password. You must ensure that all uses of your login name and password comply with this agreement.
You must immediately notify us of any unauthorized use of your login/username or password, or if you know or suspect that your login name or password has been lost or stolen, has become known to any other person, or has been otherwise compromised.
All login/usernames and passwords remain our property, and may be cancelled or suspended at any time by us without any notice or liability to you or any other person. We are not under any obligation to verify the actual identity or authority of the user of any login name or password. THE SECURITY AND PRIVACY PROVIDED BY PASSWORDS IS NOT COMPLETE, AND CAN BE CIRCUMVENTED. YOUR USE OF PASSWORDS AS WELL AS OUR WEBSITE IS AT YOUR OWN RISK.
18. INFORMATION SUBMISSIONS
All information you provide through the website, including registration information (name and email address), personal information, payment information (credit card numbers and expiration dates), and transaction-related or bid-related information, must be true, accurate, current and complete. You must also provide us with updated registration information within 30 days of any changes. We will rely upon the information you provide to us.
You will be solely responsible and liable for any and all loss, damage, and additional costs that we, you or any other person may incur as a result of your submission of any false, incorrect or incomplete information or your failure to update your registration information, bidding information and payment information within 30 days of any change. We may require a copy of a government-issued form of identification before making any changes to your registration information.
19. PERSONAL INFORMATION POLICY
The collection, use and disclosure of your personal information by us is governed by our Privacy Policy, available online at http://www.888auctions.com/index.php/privacy, and which we reserve the right to amend at our discretion. By using our website or otherwise submitting your personal information to us, you confirm that you have read our Privacy Policy and consent to the collection, use and disclosure of your personal information, as outlined therein.
20. OWNERSHIP AND PERMITTED USE OF THE WEBSITE
The website and all information (in text, graphical, video and audio forms), images, icons, software, design, applications and other elements available on or through the website is the property of the Auction House, its Providers and others, and is protected by Canadian and international copyright, trade-mark, and other laws. Your use of the website does not transfer to you or any other person any ownership or other rights in the website or its content. You may only use the website in the manner described specifically in this agreement.
The website may not be used for any purpose not expressly permitted by this agreement. In particular, except as expressly stated otherwise in this agreement, the website may not be copied, imitated, reproduced, republished, uploaded, posted, transmitted, modified, indexed, catalogued, or distributed in any way, in whole or in part, without the express prior written consent of the Auction House. You may not use any of the software that is used in the operation of the website except in the course of using the website. You may not reproduce, copy, duplicate, sell, or resell any part of the website (including the software used in the operation of the website) or access to the website. The website is made available to you for your lawful use only. You may access and browse the website using commercially available, SSL-capable web browser software. You may print or download the pages of the website for your personal use provided that you do not modify any of the website pages or other content and you do not remove or alter any visible or non-visible identification, marks, notices, or disclaimers.
21. TRADE-MARK INFORMATION
888 Auctions Inc. and the 888 Auctions logo are registered and/or unregistered trade-marks and trade names owned by 888 Auctions Inc. Other product and company names and logos appearing on the Web Site may be registered or unregistered trade-names, trade-marks and service-marks of their respective owners.
Any use of the trade-names, trade-marks, service-marks and logos (collectively "Marks") displayed on the Web Site, except as expressly provided in this agreement, is strictly prohibited. Nothing appearing on the Web Site or elsewhere shall be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any Marks displayed on the Web Site.
22. OTHER SITES
The website may include links to other websites or resources and businesses operated by other persons ("Other Sites"). Other Sites are independent from the Auction House, and we have no responsibility or liability for or control over Other Sites, their businesses, goods, Services, or content. Links to Other Sites are provided solely for your convenience. We do not sponsor or endorse any Other Sites or their content or the Services available through those other websites. Your use of Other Sites and your dealings with the owners or operators of Other Sites is at your own risk, and you shall not make any claim against us arising out of your use of any Other Sites or your dealings with the owners or operators of any Other Sites. All terms of this agreement which serve, in any way, to limit the liability of 888 Auctions Inc. shall apply, with all necessary modifications, to your access to and use of any Other Sites and their business, goods, Services, and content.
23. LINKING AND FRAMING THE WEBSITE
Linking to the website without our express written permission is strictly prohibited. To request permission to link to the website, please contact us through the contact information provided on our website. We reserve the right to cancel and revoke any permission we may give to link to the website at any time, for any reason, without any notice, and without any liability to you or any other person. The framing of the website or any of its content in any form and by any method is strictly prohibited.
24. POSTINGS AND UNSOLICITED SUBMISSIONS
You may not modify the website or post comments, communications, or any other data of any kind to or on the website with the intention that such postings may be viewed by other users of the website.
We do not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names. The purpose of this policy is to avoid potential misunderstandings or disputes. Accordingly, please do not send any unsolicited ideas, suggestions or other materials ("Submissions") to us or the website. However, if you do send Submissions to us or the website, you automatically grant (or warrant that the owner of the Submissions grants) to us and our assigns a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of us or our assigns, and you agree, represent and warrant that all moral rights in the Submissions are waived in favour of us and its assigns
25. DISCLAIMER OF ANY WARRANTIES
As any purchaser had the opportunity to fully inspect each lot prior to purchase, and willingly purchased each lot and/or item "AS IS", "WHERE IS," "WITH ALL FAULTS", "WITHOUT RECOURSE" and without the possibility of a refund, purchaser has expressly waived all warranties against the auction house and/or consignor, whether EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABILE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE FULLEST EXTENT PERMITTED
BY LAW. The entire risk from entering into the transaction rests with purchaser. 888 Auctions Inc. disclaims ANY AND ALL OTHER WARRANTIES including, but not limited to, any guarantees as to age, period, history or historical significance, authenticity, composition, artist/sculptor/creator and/or
provenance. No statement in this catalogue or elsewhere, orally or in writing, shall be construed as an express or implied warranty, representation or assumption of liability as to authenticity. Any such warranties are waived.
26. GENERAL LIMITATION OF LIABILITY AND LIABILITY EXCLUSIONS, RELEASE AND INDEMNITY PROVISIONS
a) YOUR USE OF THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OR USEFULNESS, ALL OF WHICH WE AND OUR INTERNET PROVIDERS HEREBY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW.
b) YOU (AND NOT US OR OUR PROVIDERS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION TO ANY COMPUTER OR OTHER EQUIPMENT ARISING FROM, CONNECTED WITH, OR RELATING TO YOUR USE OF THE WEBSITE.
c) THE OPERATION OF THE WEBSITE MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND OUR' CONTROL. THE OPERATION OF THE WEBSITE MAY NOT BE CONTINUOUS OR UNINTERRUPTED OR SECURE. SECURITY AND PRIVACY AND CONFIDENTIALITY RISKS CANNOT BE ELIMINATED.
d) WE ARE UNDER NO OBLIGATION TO VERIFY THE IDENTITY OF USERS OF THE WEBSITE. HOWEVER, YOU AGREE NOT TO SHARE YOUR LOGIN NAME OR PASSWORD NOR TO ALLOW ANYONE TO USE THE WEB SITE POSING AS YOU.
e) THROUGH OR BECAUSE OF YOUR USE OF THE WEBSITE, YOU MAY HAVE THE OPPORTUNITY TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH OTHER PERSONS, INCLUDING BUT NOT LIMITED TO THOSE WHERE WE ACT AS AN AGENT TO A CONSIGNOR IN THE COURSE OF AN AUCTION. ALL SUCH TRANSACTIONS ARE AT YOUR OWN RISK. WE ARE NOT A PARTY TO ANY SUCH TRANSACTIONS AND DISCLAIM ANY AND ALL LIABILITY REGARDING ALL SUCH TRANSACTIONS.
f) FURTHER, WE MAKE NO REPRESENTATION, WARRANTY OR ASSURANCE THAT:
i) OUR WEBSITE WILL BE COMPATIBLE WITH YOUR COMPUTER AND RELATED EQUIPMENT AND SOFTWARE;
ii) THE WEB SITE WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR WILL BE FREE OF ERRORS OR THAT ANY ERRORS WILL BE CORRECTED;
iii) THE INFORMATION AVAILABLE ON OR THROUGH THE WEB SITE WILL BE ACCURATE, COMPLETE, SEQUENTIAL, OR TIMELY;
iv) PARTICULAR RESULTS OR ANY RESULTS AT ALL MAY BE OBTAINED THROUGH THE USE OF THE WEB SITE;
v) THE USE OF THE WEB SITE, INCLUDING THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE OR DISRUPTIVE COMPONENTS; OR
vi) THE USE OF THE WEBSITE WILL NOT INFRINGE THE RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON;
AS SUCH, ON OUR OWN BEHALF, AND ON BEHALF OF OUR PROVIDERS, WE DISCLAIM ANY AND ALL LIABILITY REGARDING SUCH MATTERS, INCLUDING WHERE RESULTING FROM OUR OWN NEGLIGENCE, TO THE FULLEST EXTENT PERMITTED BY LAW.
g) NEITHER WE, NOR OUR PROVIDERS, WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OF USE, LOSS OF PRODUCTION, LOSS OF INCOME OR PROFITS (ANTICIPATED OR OTHERWISE), LOSS OF MARKETS, ECONOMIC LOSS, SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, ARISING FROM, CONNECTED WITH, OR RELATING TO THESE TERMS AND/OR THE USE OF THE WEB SITE BY YOU OR ANY OTHER PERSON OR THE SERVICES PROVIDED THROUGH THE WEBSITE, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY US OR ANY OF OUR PROVIDERS OR ANY PERSON FOR WHOM WE OR ANY OF OUR PROVIDERS ARE RESPONSIBLE, AND NOTWITHSTANDING THAT WE OR OUR PROVIDERS MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED BY YOU OR ANY OTHER PERSON.
h) WHILE IT IS THE INTENTION OF THE PARTIES THAT THE PURCHASERS, BIDDERS AND CONSIGNORS, AS THE CASE MAY BE, BEAR THE WHOLE RISK OF ANY LOSS ASSOCIATED WITH ANY TRANSACTION, AND THAT OUR PRICES AND FEES HAVE BEEN CALCULATED ACCORDINGLY TO REFLECT SUCH ALLOCATION OF RISK, IN THE EVENT THAT A COURT DECLINES TO ENFORCE THOSE PROVISIONS, IN NO EVENT WILL OUR TOTAL LIABILITY, OR THE LIABILITY OF OUR PROVIDER, OR ANY OTHER PERSON FOR WHOM WE ARE AT LAW RESPONSIBLE, FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, AND COSTS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, AND REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY US OR ANY PERSON FOR WHOM WE ARE AT LAW RESPONSIBLE, EXCEED THE LESSER OF
i) THE AMOUNT YOU PAID TO US FOR THE PURCHASE AND/OR USE OF SERVICES VIA THE WEB SITE; or
ii) THE AMOUNT WE ACTUALLY RECEIVED AND GOT TO KEEP (i.e. Buyer's Premium plus Seller's Commission) AS A RESULT OF THE TRANSACTION;
iii) ONE THOUSAND ($1,000.00) DOLLARS.
i) YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE EACH OF US, OUR PROVIDERS AND ALL OF OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE WEB SITE OR THE SERVICES.
j) YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF US, OUR PROVIDERS AND ALL OF OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS (COLLECTIVELY, THE "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LIABILITIES, EXPENSES AND COSTS, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES, INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM OR DEMAND ARISING OUT OF, RELATED TO, THESE TERMS, OR CONNECTED WITH YOUR USE OF THE WEB SITE, THE USE OF THE WEB SITE BY SOMEONE POSING AS YOU, YOUR USE OF THE SERVICES, OR YOUR BREACH OF THIS AGREEMENT. YOU WILL ASSIST AND CO-OPERATE AS FULLY AS REASONABLY REQUIRED BY THE INDEMNIFIED PARTIES IN THE DEFENCE OF ANY SUCH CLAIM OR DEMAND. YOU FURTHER AGREE TO INDEMNIFY US AND OUR PROVIDERS FROM ALL SUITS, DAMAGES, COSTS AND LIABILITIES WHATSOEVER ARISING FROM ANY TRANSACTIONS IN WHICH YOU ENGAGE USING PRODUCTS OR SERVICES OBTAINED FROM OR THROUGH THE WEBSITE.
k) ADVICE AND INFORMATION PROVIDED BY US OR OUR REPRESENTATIVES, WHETHER ORAL OR WRITTEN, WILL NOT CREATE ANY REPRESENTATION, WARRANTY OR CONDITION OR VARY OR AMEND THIS AGREEMENT, INCLUDING THE ABOVE DISCLAIMER, LIABILITY EXCLUSION, LIABILITY LIMITATION, RELEASE AND INDEMNITY PROVISIONS, AND YOU MAY NOT RELY UPON ANY SUCH ADVICE OR INFORMATION. ANY SUCH ADVICE AND INFORMATION SO PROVIDED SHALL BE DEEMED TO HAVE MERGED INTO THIS AGREEMENT, WITH THE TERMS OF THIS WRITTEN AGREEMENT CONTROLLING.
27. GOVERNING LAW AND FORUM
This agreement, your use of our website and the products and/or services provided by us, and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed under the laws of the Province of Ontario, without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Canadian law, rules, and regulations, Canadian law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. All matters arising hereunder shall be deemed to have occurred solely in Toronto, Canada, and the Courts of Toronto shall form the exclusive forum, and have exclusive jurisdiction, to resolve any disputes between the parties. In any dispute, the parties waive their rights to demand, and no attendance money need be paid, in regard to examinations or other steps in any proceedings, all of which shall occur in Toronto, Ontario, Canada. In any action brought in Toronto, the parties expressly waive their rights, and no party shall raise the issues of lack of jurisdiction of forum non conveniens.
28. MISCELLANEOUS
i) Severability. It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be unlawful, void, invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. In such an event, it is the intent of the parties that the fewest words possible be stricken so that the remainder of this agreement may be upheld and the intent of the parties effectuated as set forth herein.
ii) The provisions of this agreement will inure to the benefit of and be binding upon each of the parties, our providers, and all respective successors and assigns and related persons and you and your heirs, executors, administrators, successors, permitted assigns, and personal representatives. We may assign our rights and obligations under this agreement without your consent, as we see fit.
iii) No waiver, express or implied, by either party of any breach of or default under this agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
iv) The Auction House and you are independent contractors and no agency, partnership, joint venture, employment or franchise relationship is intended or created by this agreement or your use of the website.
v) The parties have expressly requested and required that this agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s'y rapportent soient rediges en anglais.
vi) Any rights not expressly granted by this agreement are reserved to 888 Auctions Inc.
vii) Section Headings & Contract Interpretation. Section headings, including paragraph headings and sub-paragraph headings are descriptive only, and shall not be used to limit the terms of this agreement or the described intent of same. In the event the Court is required to resort to the rules of construction, the parties request that the Court take a purpositive approach, guided by the parties' stated intent to, to the fullest extent possible, exculpate 888 Auctions Inc. from any and all liability, including any liability arising from its own negligence, and hold 888 Auctions Inc. harmless from any and all claims, and that 888 Auctions Inc. be fully indemnified from same, recognizing that the Auction House deals with a high volume of relatively low priced merchandise, and that it's prices reflect the fact that all duties of inspection and due diligence are willingly borne by the bidders, purchasers and/or consignors, which is reflected in the prices paid and/or fees charged. Further, the doctrine that documents be construed against their drafter shall not apply.
viii) Wherever necessary to effectuate the stated intent of the parties to this agreement, summarized in the Section Headings & Contract Interpretation subparagraph above, words used in the singular include the plural and vice versa, and the neuter gender includes the masculine and the feminine.
ix) All provisions of this agreement that may limit the liability of 888 Auctions Inc., and/or those that limit warranties and/or those that require 888 Auctions Inc. be indemnified shall survive any party's termination of this agreement. Likewise, any provisions related to the collection of unpaid accounts shall survive.
x) In any legal proceedings, the Auction House shall be entitled to recover its legal fees on a full indemnity basis.
xi) As may be used in this document, "and" is conjunctive (meaning, e.g., A and B); and "or" is disjunctive and inclusive (meaning, e.g., A or B, or both A & B). The term "and/or" shall be construed likewise.
Modified October 1, 2015