TERMS & CONDITIONS (Updated 12 december 2023)
Estuary Auctions (“Estuary”) has a team of professional evaluators that will help appraise your item/s and welcome your consignment/s for sale at our auction. Estuary reserves the right to accept or reject item/s to be consigned. Upon signature of the Sellers agreement, the Seller will be deemed to have entered into a binding agreement with Estuary to promote, market, advertise and offer for sale at auction item/items belonging to the Seller at Estuary’s effort and expense. The Sellers agreement shall remain in full force and effect as from the date of execution of the agreement until the earlier of (a) the Seller withdrawing a lot entered for sale, as set out below; or (b) the Seller’s auction item/items being sold; or (c) the 4-month anniversary of the agreement, when it shall terminate automatically without notice. In the event the auction item/items of the Seller remain(s) unsold by the end of the term of the Seller agreement, the Seller’s auction item/items shall be stored at the Seller’s cost for no more than 14 days, following which the item/items shall be returned to the Seller at the Seller’s sole cost and responsibility.
Withdrawal: If the Seller wishes to withdraw a lot entered for sale through Estuary then a written notice must be delivered to Estuary no later than 30 days prior to the scheduled auction date whereby a 10% withdrawal fee of the agreed reserve price will be charged and the lot will only be returned once the fee is paid in full to Estuary.
Late entry lots: Late entry lots consigned within thirty (30) calendar days prior to the applicable auction date will not be withdrawn by the Seller prior to the scheduled auction date and will be offered for sale at auction on the agreed auction date.
Compliance with UAE law: Estuary reserves the right to reject any auction item/items from the Seller where the promotion, marketing, advertising, offering for sale, dealing in or sale thereof would be in contravention of the laws of the United Arab Emirates and/or breach any sanctions administered by the government of the United Arab Emirates or the United Nations.
The Seller is expected to fully insure their property and/or item/s including when the property and/or item/s are being held by Estuary. Estuary reasonably insures consigned items through a third-party insurer covering against loss or damage by Estuary’s handling, delivery and shipping of the relevant item/s. In the event insurance coverage takes effect, the Seller will be reimbursed for the contractually agreed reasonable reserve price. Only after full payment is received and confirmed, the successful buyer of the item/s (the “Buyer”) may receive the purchased item/s, however, upon delivery of such item/s, Estuary insurance and all liabilities thereafter are terminated. In the case of shipped out item/s, the Buyer is responsible for all costs of shipping and insurance.
Estuary charges a 15% fee of the value of the hammer price and additional applicable value added tax (“VAT”) on that fee, effective December 12, 2023 onwards, to be paid by the Seller on each lot sold. Once the lot is consigned and the Seller’s contract is signed, the lot/s may no longer be withdrawn. If the Buyer fails to pay for item/s, Estuary will pursue legal action and no longer accept future bids or participation at auction and will return unpaid item/s to the Seller. Once the Buyer has paid for items sold by the Seller, the Seller will be paid the hammer price less the Sellers fee after 30 days. Estuary reserves the right to accept or reject items to be consigned. Estuary reserves the right to withdraw consigned items prior or during auction without advice and return to the Seller.
BUYING AT ESTUARY AUCTIONS
The first step for potential Buyers is to register their details with Estuary (a complete registration of the potential Buyer will be required including identification and credit card details), you will then be issued a paddle with a number to bid on (after which Estuary will issue a permanent client number to you). If you successfully win a bid, you will automatically enter a legally binding contract whereby you, as the Buyer are expected to pay the hammer price plus the added Buyer’s premium for each lot to Estuary (as set out below). You must inspect each lot prior to sale and during viewing, each lot sold is “AS IS” and Estuary will not be held responsible for any defects or damages in any lot once sold. There will be no discount, refund or exchange of lot/s once sold.
Estimates are a publicized complimentary service provided by Estuary prior to auctions. They are a forecasted prediction by Estuary of the approximate range of the hammer prices upon sale of the lots. Estimates are not an exact and final binding value or price guide to be strictly adhered to. Factors taken into consideration upon providing an estimate include and are not limited to: the nature of the lot, the merchantability of the lot and the date of the auction sale at a particular marketplace.
Condition reports are a complimentary service provided by Estuary. They are a brief and general overall description of the physical state of a lot including its colour, dimension and immediate visible characteristics, and they are obtained by visual inspection only and are released at the Buyer’s request. Please note that minor flaws and wear and tear may not necessarily be disclosed due to their irrelevance taking into consideration the age of the lot, it is therefore recommended for Buyers to personally inspect items at the viewing stage prior to sale. Our description of any lot, any condition report and any other statement made by us (whether orally or in writing) about any lot, including about its nature or condition, artist, period, materials, approximate dimensions, or provenance are Estuary’s opinion and not to be relied upon as a statement of fact. Estuary gives no warranty in relation to any statement made, or information given, by Estuary or its representatives or employees, about any lot or the merchantability of any lot. As far as allowed by law, all warranties and other terms which may be added to this agreement by operation of law are excluded and we do not have any liability to Buyer(s) in relation to those warranties. Estuary does not carry out in-depth research of the sort carried out by professional appraisers, historians or scholars. All dimensions and weights are approximate only. Any authentication or verification of a lot shall be the sole responsibility of the Buyer.
In Person: After completion of registration (as set out above), you will be issued a permanent client number and given a paddle with a number which must be raised to the auctioneer on the lot you wish to purchase. If you win and are successful only by being the highest bidder or the only bidder at reserve price, then at the drop of the hammer you enter a legally binding contract becoming the Buyer and must pay the hammer price and the buyer’s premium on each lot bought. After you have ended bidding for the day, you may proceed to the cashier to pay.
Absentee: First time bidders must first register then are issued a client number by Estuary after which they can fill out an absentee bid form. This is a private and confidential service. Estuary does not guarantee your acquisition of the lot/s since there may be a bidder that will outbid you or a duplicate absentee bid is received by Estuary before you. Absentee bids must be received by Estuary no later than 24 hours prior to the applicable auction date. Estuary shall not be deemed responsible for any internet, computer, technical or human error regarding the absentee bid service.
Online: Please refer to the Estuary website for the terms and conditions applicable to online bidding. Where online bidding is taking place, the terms and conditions set out in the Estuary website shall take precedence and supersede these terms and conditions.
It is of critical importance that the Buyer ensures that they have readily available funds to pay the full purchase price and the Buyer’s premium in full before making a bid for the lot/s. The Buyer must pay the entire amount due (including the hammer price, buyer’s premium, tax) no later than 5p.m. on the seventh (7th) calendar day following the sale. After which an additional seven percent (7%) will be added to the total amount due. Payments must be made in US Dollars via credit card; wire transfer; bank manager’s check (UAE bank); or other arrangements made with Estuary. Online bidders must pay by wire transfer.
Please note: Payments made by anyone other than the registered Buyer will not be accepted.
A Buyers’ premium of 25% will be added to every lot sold. Please be advised that from December 12, 2023 onwards, VAT will be charged on top of the total buyer’s premium. Whilst VAT is currently charged out at the rate of 5%, this may change from time to time and the Buyer agrees and accepts to pay the applicable VAT rate in force at the time of payment.
PRIVATE and MANAGED AUCTIONS
Buyer premiums may differ at managed and private auctions and are to be agreed contractually with clients on a case by case basis.
COLLECTION AND STORAGE
Once Estuary has received all cleared funds due, the Buyer shall collect purchased lots within thirty (30) calendar days from the date of the auction. After the thirtieth day a storage charge of US Dollars 30.00 plus VAT will apply per item per day. Collection of sold item/s is by appointment only and it is the sole responsibility of the Buyer to pick up purchases and/or make shipping arrangements.
Estuary will not be responsible for local, import or export duties and tariffs on purchased or consigned item/s. At all times, the Buyer is solely responsible for getting advice about and complying with the requirements of any laws or regulations which apply to exporting or importing any lot.
EXCLUSION OF LIABILITY
Estuary reserves the right to accept or reject potential consignment/s without necessarily providing an explanation. The Seller enters into a binding contract, whereby, Estuary reasonably authenticates and registers the Seller’s identification along with confirming detailed and documented full cover insurance of their item/s. Estuary will act in a professional capacity, good faith and perform reasonable precautionary measures on the matter of appraisals, estimates, advice and representation, however, all lots sold are ‘AS IS’ and certain item/s such as antiques and fine art rarely have their original receipts or invoices. Therefore, Estuary holds no warranties and will not be held liable with regards (but not limited to) misinterpreted, misrepresented, represented and/or stolen items that are consigned, sold or purchased through Estuary. In the event of any discrepancy as of which is mentioned or in relation to the above, Estuary will provide fair and reasonable cooperation, assistance and support to the strictly jurisprudential and legally or potentially harmed party after the claim, report, or complaint is officially delivered to Estuary within reasonable time. Any proven discrepancy in a lot resulting in a claim by the Buyer against Estuary or the Seller will be limited to the actual purchase price of the lot and as governed by the local laws and regulations.
The above Terms and Conditions are as of 18 April 2023. For Further information regarding the above, please contact Estuary Auctions.
Estuary Auctions Terms and Conditions of Use
Last updated on 12TH OF DECEMBER 2023
ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THIS AGREEMENT: (1) ACCEPTING THE TERMS AND CONDITIONS OF USE ELECTRONICALLY DURING THE REGISTRATION OR SIGN-UP PROCESS AND/OR UPON LOGGING ON TO USE THE SERVICES OR (2) USING THE SERVICES AS DESCRIBED HEREIN. THROUGH ANY OF THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.
We strongly recommend that, as you read these Terms and Conditions of Use, you also access and read all linked information, as well as the listing of Auction Terminology.
Estuary may change the terms of this Agreement from time-to-time. If we make any changes to the terms of this Agreement, we will notify you by revising the last updated date at the top of this Agreement, and, though no further notice shall be required, in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on Estuary’s website(s)). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes. Updated versions of the Agreement will be posted on the Estuary web site and changes will be binding on you on the date they are posted as set forth herein. Updated versions of the Agreement will supersede all previous versions of the Agreement as well as any previously agreed upon terms of service to the extent they are inconsistent with the updated Agreement. Accordingly, you are encouraged to periodically review our Terms and Conditions of Use for any such changes and/or amendments.
“AUCTION MOBILITY” means the third-party bidding software, AUCTION MOBILITY is required to participate in any and all Live Auctions conducted by Estuary, subject to AUCTION MOBILITY’S Terms & Conditions.
“Buyer” means the person, authorized agent, or entity (including you) that successfully bids for Property that Estuary offers for sale at a Live Auction conducted on the Estuary Site.
“Estuary Marks” means Estuary’s domain names, trademarks, logos, and other branding elements used in furtherance of the Estuary Services and/or in the performance of this Agreement.
“Estuary Services” or “Services” means the online internet website platform provided by Estuary that allows prospective purchasers the ability to access Estuary’s listings for the sale of Property and to bid for such Property through one or more Live Auctions conducted by Estuary on the Estuary Site.
“Estuary Site” or “Site” means the online venue through which prospective purchasers of Property vie and bid on Property listed by Estuary located at https://www.estuaryauctions.com.
“Live Auction” means an auction wherein s registered users can bid either through absentee bids or real-time bids through the internet using BIDPATH technology on Property being auctioned by Estuary.
“MAGNATI” means MAGNATI PAYMENT SYSTEMS, the third-party payment services provider used by Estuary to coordinate and facilitate a Buyer’s purchase of Property from Estuary in connection with a Live Auction, subject to the MAGNATI Terms & Conditions.
“Property” means the goods and/or services that Estuary lists for sale through the Estuary Site.
- Access to the Service
- Live Auction eligibility
Each Live Auction which Estuary conducts has separate eligibility requirements that must be met for you to participate in that auction. You may be required to apply for and obtain approval from Estuary to participate in a specific Live Auction. Approval to participate in one Live Auction does not guarantee approval to participate in any other Live Auction, conducted either by Estuary. Estuary has sole and absolute discretion to refuse to approve your eligibility for any Live Auction.
- Estuary requirements and bidding
Auctions. Estuary will list available items on which you may bid. Auction dates and times, as well as the number, character, and order and schedule of the items to be auctioned, are set by Estuary and are subject to change without notice. Individual lots and items may be modified or changed at any time. Some lots and items that are made available in physical “on the floor” auctions may not be included in online live auction services.
Auction estimates. Estimates are a publicized complimentary service provided by Estuary prior to auctions. They are a forecasted prediction by Estuary of the approximate range of the hammer prices upon sale of Property. Estimates are not an exact and final binding value or price guide to be strictly adhered to. Factors taken into consideration upon providing an estimate include and are not limited to the nature of the Property, the merchantability of the Property and the date of the auction sale at a particular marketplace.
Bidding. Any and all bidding and participation in Live Auctions must take place through BIDPATH. By using BIDPATH, you acknowledge and agree that you will be subject to an agreement with BIDPATH as set out in BIDPATH’s own terms and conditions. It is your responsibility to review and confirm acceptance of BIDPATH’s terms and conditions. BIDPATH may require you to separately register for BIDPATH. It is of critical importance that any potential Buyer ensures that they have readily available funds to pay the full purchase price and additional applicable fees, as set out in Section 9 of this Agreement.
Condition reports. Condition reports about any Property are a complimentary service provided by Estuary. They are a brief and general overall description of the physical state of a lot including its colour, dimension and immediate visible characteristics, and they are obtained by visual inspection only and are released at a Buyer’s request. Minor flaws and wear and tear may not necessarily be disclosed due to their irrelevance taking into consideration the age of certain Property, it is therefore recommended for potential Buyers to personally inspect items prior to a Live Auction. Estuary’s description of any Property, any condition report and any other statement made by Estuary about any Property, including about its nature or condition, artist, period, materials, approximate dimensions, or provenance are Estuary’s opinion and not to be relied upon as a statement of fact. Estuary gives no warranty in relation to any statement made, or information given, by Estuary or its representatives or employees, about any Property or the merchantability of any Property. As far as allowed by law, all warranties and other terms which may be added to this Agreement by operation of law are excluded and we do not have any liability to Buyer(s) in relation to those warranties. Estuary does not carry out in-depth research of the sort carried out by professional appraisers, historians or scholars. All dimensions and weights are approximate only. Any authentication or verification of Property shall be the sole responsibility of the Buyer.
Additional terms and conditions. The terms and conditions for participation in each auction, including how bids are accepted, rules governing absentee bids, bid increments, bid retraction and cancellation, the conditions a Buyer must meet to purchase an item, as well as the specific conditions of sale (such as warranties, shipping costs, insurance, and the like) may change for each auction at the sole discretion of the Estuary. Estuary is required to post any Live Auction-specific bidding terms and conditions and to maintain such terms throughout the auction period. You agree to be bound by those Live Auction-specific bidding terms and conditions and they, in addition to these Terms and Conditions of Use, govern your bidding activity, as well as your participation in each auction. Estuary makes the sole, final determination concerning bidding on a Property, the sale of Property, and the resolution of any disputes.
- Estuary is only a venue
- Compliance with laws
You acknowledge and agree that the use, purchase, distribution, promotion, advertising, and sale of certain Property is subject to additional United Arab Emirates and Emirate laws and regulations. You further acknowledge and agree that Estuary’s role concerning the sale of Property is limited to providing a conduit through which a prospective purchaser can participate in an auction. You expressly represent that you shall comply with all applicable United Arab Emirates and Emirate laws and regulations relating to your use, purchase, and distribution of any Property that you bid upon or purchase through Estuary. You shall at all times defend, indemnify and hold harmless Estuary, its shareholders, members, partners, officers, directors, employees, agents, parent, subsidiaries, affiliates, joint venturers, and successors and assigns, from, and against, all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney’s fees) of any nature or kind, arising under or resulting from: (i) your use, purchase, or distribution of any products in violation of any applicable laws or regulations; (ii) your use of Estuary in connection with the purchase of any Property subject to any applicable laws or regulations; and (iii) your alleged or actual violation or breach of any applicable laws or regulations.
- Using the Site and the Services
While using Estuary, you shall not: (a) violate any laws, rules, regulations or third party rights; (b) use our sites or services if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our sites; (c) fail to deliver payment on any item that you purchased through our sites; (d) manipulate the price of any item or interfere with other user’s listings; (e) post false, inaccurate, misleading, defamatory, or libelous content (including personal information); (f) distribute or post spam, chain letters, or pyramid schemes; (g) distribute viruses or any other technologies that may harm Estuary, our sites, or the interests or property of Estuary’s users; (h) copy, modify, or distribute content from our sites and/or violate Estuary’s copyrights and trademarks; or (i) harvest or otherwise collect information about users, including, without limitation, email addresses, without their consent. Nor shall you encourage or assist any third party to engage in any of the prohibited conduct set forth above. Any violation of this provision shall constitute a material breach of this Agreement and, under such circumstances, we will have the right, in our sole and absolute discretion, to prohibit your access to our sites and to suspend or terminate your right to use our services.
Estuary will work to keep our sites and services working properly and safely. Please report problems, offensive content, and any policy violations to us. Without limiting our remedies, it is understood that we may limit, suspend, or terminate our services and user accounts, prohibit access to our sites, delay or remove hosted content, and take technical and legal steps to keep users off our sites if we believe that they are misusing, abusing, or interfering with the provision of our services, engaging in unlawful conduct, or acting inconsistently with the letter or spirit of our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a long time.
The sites contain robot exclusion headers. Much of the information on the sites is updated on a real-time basis and is proprietary or is licensed to Estuary by our users or third parties. You agree that you will not use any robot, spider, scraper, or other automated means to access the sites for any purpose without our express written permission. Additionally, you agree that you will not: (a) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the sites without the prior, express written consent of Estuary and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper working of our sites or any activities conducted on the sites; or (d) bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the sites.
Upon agreeing to participate in any bidding process conducted by Estuary Auctions, users acknowledge and agree that the auction house uses associated or affiliated bidding websites to conduct its auctions, and therefore also agree to be bound by the terms and conditions of such associated or affiliated bidding websites, which are incorporated into and form a part of these terms and conditions.
- Fees, payments, shipping and storage
Estuary fees. A Buyer’s premium of 25% of the hammer price for a Property will be added to every Property purchased from Estuary. When you purchase Property from Estuary during a Live Auction, you agree that, you shall immediately following conclusion of the Live Auction pay the purchase price for such Property as well as the aforementioned Buyer’s premium, applicable UAE value added tax (“VAT”) and other applicable fees through MAGNATI. If a Buyer fails to make the aforementioned payments for a Property, Estuary reserves the right to charge an additional 3% penalty fee (daily) and/or withhold the Property and/or pursue legal action and shall no longer accept future bids or participation of the Buyer at any other Live Auction. Once Estuary has received all cleared funds due, the Buyer shall be entitled to collect or receive purchased Property within thirty (30) calendar days from the date of the Live Auction. After the thirtieth day a storage charge of US Dollars 30.00 plus VAT will apply per item per day. Collection of sold Property is by appointment only and it is the sole responsibility of the Buyer to collect Property or make the relevant shipping arrangements. The Buyer is responsible for all costs of insurance and shipping in respect of the delivery of purchased Property.
Export/import duties and fees. Estuary will not be responsible for any import or export duties and tariffs on purchased Property. At all times, the Buyer shall be solely responsible for getting advice about and complying with the requirements of any laws or regulations which apply to exporting or importing any Property.
MAGNATI payment platform. Estuary provides you the ability to pay Estuary through MAGNATI, a third-party payment platform and processors. By using MAGNATI, you acknowledge and agree that you will be subject to an agreement with MAGNATI, as set out in MAGNATI’s own terms and conditions. It is your responsibility to review and confirm acceptance of MAGNATI’s terms and conditions.. MAGNATI may require you to separately register for the MAGNATI payment platform.
Consent to communications
You hereby expressly authorize Estuary, its agents, representatives, and/or affiliates to transmit information to you via SMS message (including text message), email, and/or phone concerning auction results, promotional offers, and other matters about your account, as well as products or services in which you may be interested, at such telephone number or electronic address provided by you. Estuary may contact you in any manner, including SMS messages (including text messages), email or calls. You certify, warrant and represent that the telephone number(s) and electronic address(es) provided to Estuary is/are your current telephone number(s) and electronic address(es) and that you are permitted to receive calls, SMS messages (including text messages), and emails via the same. You agree to promptly notify Estuary whenever you stop using a particular telephone number or electronic address.
- Confidential Information
“Confidential Information” is defined as any confidential or proprietary information of Estuary and its suppliers , and any other material disclosed to you by Estuary in a writing marked “confidential” or disclosing information that a reasonable person would recognize as confidential business information, or if disclosed orally, identified as confidential at the time of such disclosure. You will hold Estuary’s Confidential Information in confidence and will not disclose such Confidential Information to third parties nor use Estuary’s Confidential Information for any purpose other than as required to perform your obligations under this Agreement. Such restrictions will not apply to Confidential Information which (a) is known by you before the date of disclosure, (b) becomes, through no act or fault of the recipient, publicly known, (c) is received by you from a third party without a restriction on disclosure or use, or (d) is independently developed by you without reference to the Confidential Information.
If you are required or compelled by law or court order to make any disclosure of Confidential Information, you shall provide Estuary with prompt written notice of such requirement before such disclosure (to the extent permitted by law) so that Estuary may seek a protective order or other appropriate relief. Subject to the foregoing, you may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
- Intellectual property/restrictions on use
The Services and the Site are protected by copyright, trademark, and other laws of both the United Arab Emirates and other countries. Nothing in this Agreement gives you a right to use the Estuary name or any of the Estuary Marks or other proprietary rights. All right, title, and interest in and to the Services and the Site, including all intellectual property rights, are and will remain owned exclusively by Estuary and its licensors. Any feedback, comments, or suggestions you may provide regarding Estuary, the Services, or the Site is entirely voluntary, and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you. We reserve all rights concerning the design and content of our Site. In particular, you may not misappropriate the design or content of our sites and you may not alter or deface such design or content in any way. Nothing on our websites grants any license with respect to such design or content. All trademarks, service marks, trade names, logos, graphics, articles, and other materials on our sites are protected by United Arab Emirates and foreign copyright, trademark, and other applicable laws. In particular, all trademarks, service marks, trade names, and logos displayed on our sites are proprietary to Estuary, its affiliates, or third-party owners and our websites grant no license thereto. You acknowledge that you have read, and will at all times comply with Estuary’s Intellectual Property statement. All text, images, articles, photographs, illustrations, audio, graphics, graphs, information, links, videos or video clips, and other materials or arrangements of materials uploaded, downloaded or appearing on the Site or available through the Services are provided for your informational purposes only. You are responsible for your use of the Service and for any information you provide, including compliance with applicable laws, rules, and regulations. You should only provide information that you are authorized to share.
You agree to defend, indemnify and hold harmless Estuary, its shareholders, members, partners, officers, directors, employees, agents, parent company, subsidiaries, affiliates, joint venturers, successors and assigns, from, and against, any and all causes of action, suits, claims, demands, judgments, liabilities, losses, damages, awards, penalties, fines, costs and expenses (including, but not limited to, reasonable attorney’s fees), arising out of, relating to, or resulting from: (i) any claim of ownership, right to possession, or quality of any of the Property offered or sold by Estuary; (ii) any actual or alleged breach by you of any term, promise, covenant, obligation, representation or warranty set forth in this Agreement; (iii) your actual or alleged unlawful actions or conduct, or actual or alleged violation of applicable law, regulation, or the rights of any third party; (iv) any attempted or actual rescission of a purchase made by you or a sale made by Estuary; and (v) the alleged negligence or misuse of BIDPATH and/or. The foregoing provision shall apply regardless of whether the individual/entity asserting the claim, action or damages is ultimately able to substantiate the said claim, action or damages.
- DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ESTUARY SITE, THE ONLINE SERVICE, THE ESTUARY SERVICES, LIVE AUCTIONS, AND ANY OTHER SERVICES PROVIDED BY ESTUARY OR ESTUARY’S AFFILIATES UNDER THIS AGREEMENT ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ESTUARY DOES NOT REPRESENT OR WARRANT THAT THE LIVE AUCTIONS, THE ESTUARY SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LIVE AUCTION, THE ESTUARY SITE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS MAY NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN SUCH EVENT, YOU ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. ESTUARY FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AND DISCLAIMS ALL RESPONSIBILITY FOR: (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR THE SITE; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE OR THE SITE; (III) THE DELETION OF, OR FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT, INFORMATION, AND ANY OTHER COMMUNICATIONS, IN ANY FORMAT OR FORM, MAINTAINED BY THE SERVICE; AND (IV) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. ESTUARY IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE, OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER’S OR TO ANY OTHER PERSON’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING CONTENT OR OTHER MATERIALS OR INFORMATION IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OR ON BEHALF OF ESTUARY OR THROUGH THE SERVICE OR SITE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE IN THIS AGREEMENT.TO THE FULLEST EXTENT PERMITTED BY LAW, THE DISCLAIMERS AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OR ACCESS OF, OR INABILITY TO USE OR ACCESS, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
- Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESTUARY, ITS SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARENT COMPANY, SUBSIDIARIES, AFFILIATES, JOINT VENTURERS, AND SUCCESSORS AND ASSIGNS, BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, DELAYS IN TRAINING, OR MALFUNCTION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF ESTUARY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT ESTUARY IS LIABLE, THE TOTAL AMOUNT OF ESTUARY’S LIABILITY FOR ANY LOSS, COST, CLAIM, OR DAMAGES OF ANY KIND ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, SHALL IN NO EVENT EXCEED THE GREATER OF ONE-HUNDRED DOLLARS ($100.00) OR THE AMOUNT OF THE FEES PAID BY YOU TO Estuary DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
Any notice, demand, request or other communication which you may desire or be required to give to Estuary hereunder shall be in writing and shall be given by courier delivery service (with fees prepaid), to Estuary Auctions LLC, UNIT 2107 ADDAX TOWER, CITY OF LIGHTS, REEM ISLAND, PO BOX 33323, ABU DHABI, UAE or at any other address that we may designate in writing in the future. Any notice, demand, request, or other communication which we may desire or be required to give to you hereunder shall be in writing and shall be given by email to the email address you provided to Estuary during the registration process. All notices given by e-mail shall be deemed given as of 5:00 P.M. UAE time on the business day following the day of transmission. All notices delivered by courier delivery service shall be deemed given when delivered.
- Force majeure
No party shall be liable for any failure or delay in performing any obligation under this Agreement that is due to a force majeure event, such as acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, an act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine, employee restrictions, and related measures of any governmental authority. If a force Majeure event occurs, the affected party will notify the other party and make commercially reasonable efforts to mitigate the adverse effects of the force majeure event on the performance of this Agreement. However, this provision does not excuse your obligation to pay for services received.
This Agreement (and all documents and exhibits incorporated by reference herein), constitutes and sets forth the entire agreement and understanding of the parties about the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements, understandings, undertakings, negotiations, promises, discussions, warranties or covenants that are not specifically contained herein. In the event of an inconsistency between the terms of this Agreement and any other document which forms a part of this Agreement, the terms of this Agreement will govern.
The headings, sections, or titles of the various paragraphs of this Agreement are inserted merely for convenience and do not expressly or by implication or intention, limit, define, extend or affect the meaning or interpretation of this Agreement or the specific terms or text of the section so designated. All personal pronouns used in this Agreement shall include the other genders, whether used in the masculine, feminine or neuter gender, and the singular shall include the plural and vice versa, whenever, and as often as may be, appropriate.
This Agreement shall be governed in all respects, whether as to the validity, construction, interpretation, capacity, performance, or otherwise, by the laws of the United Arab Emirates as enforced in the Emirate of Abu Dhabi. It is expressly understood and agreed that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not govern or apply to this Agreement, and the parties hereby exclude the application of the CISG. Any dispute arising from or relating to this Agreement shall be referred to the exclusive jurisdiction of the courts of Abu Dhabi, expressly excluding the Abu Dhabi Global Market Courts.
If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, then such provision shall be deemed stricken here from and the remainder of this Agreement shall remain at all times in full force and effect. Such invalid or enforceable provision shall, to the extent legally permitted, be replaced by a valid and enforceable provision that comes closest to the parties’ intent underlying the invalid or unenforceable provision.
It is understood that any accrued but unpaid financial obligations, and any other terms related to such financial obligations, shall survive the expiration or termination of this Agreement.
No waiver of any breach, privilege, or provision of this Agreement will be construed as a waiver of any rights or remedies arising from any other or future breach, privilege, or provision.
You will not assign or transfer this Agreement, or any of its rights and obligations hereunder, without Estuary’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. However, Estuary may, in its sole discretion, assign or otherwise transfer its obligations under this Agreement to a third party.
The rights and obligations under Sections 1, 2, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, will survive the termination or expiration of this Agreement, as well as any other rights or obligations that by their nature are intended to survive termination or expiration of this Agreement.
- Amendments and future terms
Estuary may amend, modify, add, supplement, or remove any of these terms and conditions of use at any time, and from time to time. If we do so, we will post such changes on this page. IF ANY FUTURE CHANGES TO THIS AGREEMENT ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES NOW, OR FOLLOWING THE POSTING OF ANY SUCH CHANGES, WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, AND OF ANY SUCH CHANGES.