Terms of Sale
1. Binding Terms
The lots listed in this catalog will be offered by Capsule as owner or as agent for consignor subject to the following terms and conditions. Where Capsule is agent, the contract is between seller and buyer. The following Conditions of Sale and Terms of Guarantee constitute the entire agreement with the purchaser relative to the property listed in this catalog. By bidding at auction you agree to be bound by these terms:
2. As Is
All lots are sold “AS IS” and without recourse and neither Capsule nor its consignor makes any warranties or representations, express or implied, with respect to such lots, except for the limited warranties expressly stated in the Terms of Guarantee section below. Prospective buyers are strongly advised to examine personally any property in which they are interested, before the auction takes place, to determine its condition, size, and whether or not it has been repaired or restored.
Except as otherwise expressly and specifically provided in the Terms of Guarantee, neither Capsule nor its consignor makes any express or implied warranty or representation of any kind or nature with respect to merchantability, fitness for purpose, correctness of the catalog or other description of the physical condition, size, quality, rarity, importance, medium, material, genuineness, attribution, provenance, period, culture, source, origin, exhibitions, literature or historical significance of any lot sold. The absence of any reference to the condition of a lot does not imply that the lot is in perfect condition or completely free from wear and tear, imperfections or the effects of aging; nor does a reference to particular defects imply the absence of others. References in the catalog entry or the condition report to damage or restoration are for guidance only and should be evaluated by personal inspection by the bidder or a knowledgeable representative.
The Terms of Guarantee are controlling, and no statement, whether written or oral, and whether made in this catalog, an advertisement, a bill of sale, a salesroom posting or announcement, the remarks of an auctioneer, or otherwise, shall be deemed to create any warranty, representation or assumption of liability. All statements by Capsule in the catalog entry for the property or in the condition report, or made orally or in writing elsewhere, are statements of opinion and are not to be relied on as statements of fact. Except as stated in the Terms of Guarantee, neither Capsule nor the seller is responsible in any way for errors or omissions in the catalog or any supplemental material. Buyers are responsible for satisfying themselves concerning the condition of the property and the matters referred to in the catalog entry.
Capsule and its consignor make no warranty or representation, express or implied, that the purchaser will acquire any copyright or reproduction rights to any lot sold. Capsule expressly reserves the right to reproduce any image of the lots sold in this catalog.
The copyright in all images, illustrations and written material produced by or for Capsule relating to a lot, including the contents of this catalog, is, and shall remain at all times, the property of Capsule and shall not be used by the buyer, nor by anyone else, without our prior written consent.
Capsule reserves the right to withdraw any lot at any time prior to the commencement of bidding for such lot and shall have no liability whatsoever for such withdrawal.
If the auctioneer decides that any opening bid is below the value of the lot offered, the auctioneer may reject that bid and withdraw the lot from sale; and if, having acknowledged an opening bid, he decides that any advance thereafter is insufficient, he may reject that advance. Unless otherwise indicated, all lots are offered subject to a reserve, which is the confidential minimum price below which such lot will not be sold. No reserve will exceed the low estimate of the lot. Reserves are agreed upon with the consignor or, in the absence thereof, in the absolute discretion of Capsule.
Unless otherwise announced by the auctioneer, all bids are per lot as numbered in the catalog.
Capsule on occasion makes loans or advances funds to consignors.
The auctioneer may implement the reserve by opening bidding on any lot by placing a bid on behalf of the seller. The auctioneer will not specifically identify bids placed on behalf of the seller. The auctioneer may further bid on behalf of the seller, up to the amount of the reserve, by placing successive or consecutive bids for a lot or by placing bids in response to other bidders. Unless otherwise noted in the catalog or by an announcement at the auction, Capsule acts as agent on behalf of the seller and does not permit the seller to bid on his or her own property.
Each lot in the catalog is given a low and high estimate representing that range which, in the opinion of Capsule, represents a fair and probable auction value. When possible, the estimate is based on previous auction records of comparable property, condition, rarity, quality and provenances. The estimates are often determined several months before a sale and are therefore subject to change upon further research of the property, or to reflect market conditions or currency fluctuations. Estimates are subject to revision. Actual prices realized for items can fall below or above this range. An estimate of the selling price should not be relied on as a statement that this is the price at which the item will sell or its value for any other purpose. Estimates do not include the buyer’s premium.
Capsule reserves the right, at our complete discretion, to refuse admission to the premises or participation in any auction and to reject any bid, as well as the right to refuse to acknowledge any bidder. The highest bidder acknowledged by the auctioneer will be the purchaser. The auctioneer has the right at his absolute and sole discretion to advance the bidding in such a manner as he may decide, to withdraw or divide any lot, and to combine any two or more lots. In the event of error or dispute between bidders, or in the event of doubt on our part as to the validity of any bid, whether during or after the sale, the auctioneer has final discretion to determine the successful bidder, to continue the bidding, to cancel the sale, or to re-offer and resell the lot in dispute. If any dispute arises after the sale, the Capsule sale record shall be conclusive. Capsule is not responsible or liable for any disruptions or errors resulting from the personal use of internet services, including bids placed through Capsule’s live bidding software, or third party platforms.
7. Purchaser’s Responsibility
Title passes upon the fall of the auctioneer’s hammer to the highest acknowledged bidder, subject to the conditions of sale set forth herein. Such bidder there upon assumes full risk and responsibility there for (including, without limitation, liability for or damage to frames and glass covering prints, paintings or other works). Although in our discretion we will execute orders or absentee bids or accept telephone bids as a convenience to clients who are not present at auctions, we are not responsible for any errors or omissions in connection therewith.
When making a bid, a bidder is accepting personal liability to pay the purchase price as follows, unless it has been explicitly agreed in writing with Capsule before the commencement of the sale that the bidder is acting as agent on behalf of an identified third party acceptable to Capsule, and that Capsule will look only to the principal for payment:
The total purchase price to be paid by purchaser is the amount of the successful bid price plus a buyer’s premium of 25% for all sales by phone, in person, or through our website, capsuleauctions.com.
**PLEASE NOTE: All sales occurring through an online platform other than capsuleauctions.com, including but not limited to Liveauctioneers, Invaluable, Bidsquare and Artsy, are subject to a 30% Buyer’s Premium.
All purchases regardless of bidding method are subject to the Buyer’s Premium and appropriate Sales Tax.
Payment of each lot shall be made as follows:
Prior to the sale, the buyer must provide us with his or her name and permanent address and, if so requested, details of the bank from which payment will be made.
Payment must be made within three (3) days following the day of the auction. All Invoices must be paid in full and cannot be broken into multiple invoices. Such payment shall be made in U.S. dollars by certified or cashier check drawn on a U.S. bank unless other arrangements are made with Capsule. Credit cards are accepted below $1,500 USD; amounts above this price are subject to a convenience fee of up to 4% at the discretion of Capsule. The buyer will not acquire title to the lot until we have received all amounts due to us from the buyer in good cleared funds even in circumstances where we have released the lot to the buyer. Capsule reserves the right to hold merchandise purchased by personal check until the check has cleared the bank.
The purchaser agrees to pay Capsule a handling charge of $35 for any check dishonored by the drawee.
Any objects offered at this auction which contain materials from a species that is endangered or protected, including, but not limited to, ivory, coral and tortoiseshell, may require a license or certificate prior to exportation from the United States or an individual state and additional certificates or licenses for importation into another state or country. Some materials may not be exported, imported into other states or countries or resold. It is the purchaser’s responsibility to be aware of applicable laws and regulations and to obtain any required export or import licenses or certificates and any other required documentation.
Further, the purchaser shall be responsible for on-time payment of the full purchase price of the lot, even if the obtaining of any such license is denied or delayed.
Any invoices that are not paid in full within fourteen (14) days of auction will be subject to a non-refundable service fee equaling the total buyer’s premium of the invoice.
Capsule assumes no liability for failing to identify materials from endangered or protected species or for incorrectly identifying such materials.
8. Remedies Available to Capsule
In addition to the other remedies available to us by law, we reserve the right to impose a late charge of 1 1/2% per month of the total purchase price if payment is not made in accordance with the conditions set forth herein. All property must be removed from our premises by the purchaser at their expense not later than seven (7) days following its sale and, if it is not removed, Capsule reserves the right to charge a minimum storage fee of $10 per lot per day or to deliver the property to a public warehouse for storage at the purchaser’s expense, to be released only after payment in full of all removal, storage, handling, insurance and any other costs incurred, together with payment of all other amounts due to us.
Capsule shall have no liability for any damage to property left on its premises for more than (2) days following the sale.
If any applicable conditions herein are not complied with by the purchaser, in addition to other remedies available to us and the consignor by law, including without limitation the right to hold the purchaser liable for the total purchase price, including all fees, charges and expenses more fully set forth herein, we shall be entitled in our absolute discretion to exercise one or more of the following rights or remedies:
- To charge interest at such rate as we shall reasonably select;
- To hold the defaulting buyer liable for the total amount due and to commence legal proceedings for its recovery together with interest, legal fees and costs to the fullest extent permitted under applicable law;
- Cancel the sale of that, or any other lot or lots sold to the defaulting purchaser at the same or any other auction, retaining as liquidated damages all payments made by the purchaser;
- Resell the property whether at private sale or public auction without reserve, and the purchaser will be liable for any deficiency, cost, including handling charges, the expenses of both sales, our commission on both sales at our regular rate, all other charges due hereunder and incidental damages;
- To set off the outstanding amount remaining unpaid by the buyer against any amounts which we may owe the buyer in any other transactions;
- Where several amounts are owed by the buyer to us, in respect of different transactions, to apply any amount paid to discharge any amount owed in respect of any particular transaction, whether or not the buyer so directs;
- To reject at any future auction any bids made by or on behalf of the buyer or to require a deposit from the buyer before accepting any bids;
- To take such other actions as we deem necessary or appropriate; or
- To effect any combination thereof.
In addition, a defaulting purchaser will be deemed to have granted and assigned to us a continuing security interest of first priority in, and we may retain as collateral security for such purchaser’s obligations to us, any property or money of or owing to such purchaser in our possession. We shall have all of the rights accorded a secured party under the New York Uniform Commercial Code with respect to such property and we may apply against such obligations all monies held or received by us for the account of, or due from us, to such purchaser. At our option, payment will not be deemed to have been made in full until we have collected funds represented by checks, or in the case of bank or cashier’s checks, we have confirmed their authenticity. In the event the purchaser fails to pay any or all of the total purchaser price for any lot and Capsule nonetheless elects to pay the consignor any portion of the sale proceeds, the purchaser acknowledges that Capsule shall have all of the rights of the consignor to pursue the purchaser for any amounts paid to the consignor, whether at law, in equity, or under these Conditions of Sale.
9. Limited Liability
If for any cause a purchased lot cannot be delivered in as good condition as at the time of sale, or should any purchased lot be stolen or mis-delivered or lost prior to delivery, Capsule shall not be liable for any amount in excess of that paid by the purchaser. We are not responsible for the acts or omissions of carriers or packers of purchased lots, whether or not recommended by us. Packing and handling of purchased lots by us is at the entire risk of the purchaser and Capsule will have no liability for any loss or damage to such items.
10. Capsule Employees
Employees of Capsule are not prohibited from bidding on property. In the course of their employment it is possible that they may have access to information not available to the public.
11. Waiver of Conditions
Any and all of these conditions may be waived or modified in the sole discretion of Capsule. The Conditions of Sale, Terms of Guarantee, the glossary, if any, and all other contents of this catalog are subject to amendment by us by oral announcements made during the sale.
Salesroom notices amend the catalog description of a lot after our catalog has gone to press. They are posted in the viewing galleries and salesroom or are announced by the auctioneer. Please take note of them.
All measurements and weight are approximate. Capsule is not responsible for damage of glass covering paintings, drawings, other works or frames and lamp shades regardless of cause.
If any part of these Conditions of Sale is found by any court to be invalid, illegal or unenforceable, the balance of the conditions shall continue to be valid to the fullest extent permitted by law.
The rights and obligations of the parties with respect to these Conditions of Sale and Terms of Guarantee, as well as the purchaser’s and our respective rights and obligations hereunder, the conduct of the auction and any matters connected with any of the foregoing, shall be governed and interpreted by the laws of the State of New York. By bidding at auction, whether present in person or by agent, by written bid, telephone or other means, the buyer shall be deemed to have submitted, for
the benefit of Capsule, to the exclusive jurisdiction of the federal or state courts located in the state and county of New York and waives any objection to the jurisdiction and venue of any such court.
Terms of Guarantee
Capsule warrants the authenticity of authorship of each lot contained in this catalog solely and expressly subject to the terms and conditions set forth below.
1. Definition of Authorship
“Authorship” is defined as the artist, artisan, workshop, designer, school, period, culture, or source of origin, as applicable and indicated in the description of the lot. The warranted information appears in bold print immediately following the individual lot number; no other language in the catalog is warranted, including any supplemental material which appears below the bold print headings. Capsule is not responsible for any errors or omissions in any material, which appears below the bold print headings. The description of authorship in this catalog may be amended by a supplement to the catalog, or by notices or announcements at the time and place of the auction sale. This catalog may contain one or more glossaries explaining the terminology used in the catalog. All terminology used in this catalog, including the contents of the glossaries, are merely qualified statements or opinions and are not intended or made as warranted statements or representations under these Terms of Guarantee. Capsule makes no warranties whatsoever, express or implied, with respect to any material in the catalog, except as set forth in bold print headings following individual lot numbers in this catalog and subject to the exclusions set forth below.
2. Coverage Under the Guarantee
Subject to the exclusions set forth below in paragraphs 5 and 6, Capsule warrants the authorship (as that term is defined above) of each lot in this catalog for a period of five years from the date of the sale of the lot. The guarantee is made only to the original purchaser of record at the auction, and only the registered bidder for the lot at the auction will be considered as the original purchaser. The buyer must give written notice of claim within five years from the date of the auction. Capsule may require, at its option, to have the purchaser obtain at the purchaser’s expense the opinion of two recognized experts (approved by Capsule) in the field relating to the item in question, before Capsule determines whether to rescind a sale under the above warranty. Upon request, Capsule will provide the purchaser with the names of acceptable experts.
The benefits of this warranty are not assignable and shall be applicable only to the original purchaser of record (i.e., the registered bidder) and not to any subsequent owners (including, without limitation, donees, heirs, successors, beneficiaries or assigns) who have, or may acquire, an interest in any purchased property. The original buyer must have remained the owner of the lot without disposing of any interest in it to any third party.
4. Sole Remedy
The purchaser agrees that in the case of a breach of warranty under these Terms of Guarantee, he shall have no remedy other than rescission of the sale and the refund of the original purchase price paid. The original purchase price paid is defined as the amount of the successful bid price, plus the buyer’s premium. No rescission and refund will be made unless the item is returned to Capsule at 618 E. 9th Street, New York, NY 10009, in the same condition as at the time of sale. The remedy of rescission and refund is exclusive and the purchaser waives any other remedy which may be otherwise available in law or equity. Capsule shall not be liable for any special, consequential or incidental damages incurred or claimed including, without limitation, loss of profits or for interest.
This warranty does not apply to:
- authorship of any paintings, drawings or sculpture created prior to 1870, unless the lot is determined to be a counterfeit which has a value at the date of the claim for rescission which is materially less than the purchase price paid for the lot; or
- any catalog description where it was specifically mentioned that there is a conflict of specialist opinion on the authorship of a lot; or
- authorship which on the date of sale was in accordance with the then generally accepted opinion of scholars and specialists, despite the subsequent discovery of new information, whether historical or physical, concerning the artist or craftsman, his students, school, workshop or followers; or
- the identification of periods or dates of execution which may be proven inaccurate by means of scientific processes not generally accepted for use until after publication of the catalog, or which were unreasonably expensive or impractical to use at the time of publication of the catalog.
The term counterfeit is defined as a modern fake or forgery, made less than fifty years ago, and made with the intent to deceive. The authenticity of signatures, monograms, initials or other similar indications of authorship is expressly excluded as a controlling factor in determining whether a work is a counterfeit under the meaning of this Terms of Warranty.
6. Limited Warranty
As stated in paragraph 2 of the Conditions of Sale, neither Capsule nor its consignor makes any express or implied representations or warranties whatsoever concerning any property in the catalog, including without limitation, any warranty of merchantability or fitness for a particular purpose, except as specifically and expressly provided in these Terms of Guarantee.
Our Commitment to Privacy
If you choose to use our services, we may require collect, use, store, and transfer various categories of personal data about you.
Where possible, we indicate fields that are required and those that are optional. You are not required to provide data if you choose not to use a particular service or feature.
Data You Give Us
When you use our Online Platform, you may provide personal data through direct interactions such as completing forms.
- Account Data includes email address, username, and password.
- Profile Data includes first name, last name, address, and phone number.
- Email Preference Data includes your preferences in receiving marketing from us.
- Communication Data includes personal correspondence sent via emails, letters, or messages sent through our Online Platform, including feedback and survey responses.
Data We Collect Automatically
When you use our Online Platform, we may automatically collect data about your usage and your device so we can better understand, protect, and improve our service for you and our community. We collect this personal data by using cookies, web beacons, unique identifiers, and other similar technologies.
- Usage Data includes data about your activities on our Online Platform such as clicks, bids, searches, auctioneers you follow, and browsing actions and patterns.
- Technical Data includes internet protocol (IP) address, location information, your login data, browser type and version, device type and model, device identifiers, app errors, and debugging info.
- Transactional Data includes records of transactions and payments related to items you purchase through our Online Platform.
We also collect, use and share Aggregated Data such as statistical or demographic data for any purpose. Aggregated Data may be derived from your personal data but is not considered personal data in law as this data does not directly or indirectly reveal your identity. For example, we may aggregate your Usage Data to calculate the percentage of users accessing a specific Site feature. However, if we combine or connect Aggregated Data with your personal data so that it can directly or indirectly identify you, we treat the combined data as personal data which will be used in accordance with this privacy notice.
We do not collect any sensitive data about you, including race or ethnicity, political opinions, religious or philosophical beliefs, trade union membership, genetics, biometrics, health, sex life, or sexual orientation. We also do not collect data about criminal convictions or offenses.
Where possible, we indicate fields that are required and those that are optional. You are not required to provide data if you choose not to use a particular service or feature.
We may use your personal data for the following purposes:
- To fulfill contracts with you and facilitate the services you personally request
- To provide you customer support via various channels, including email, phone, and live chat
- To improve our content, layout, and product offerings
- To show you suggestions and targeted advertisements, including on other websites, based on your activities on the Online Platform
- To measure consumer interest in our products and services
- To inform you about online and offline offers, products, services, and updates
- To solicit feedback about your experience using our service
- To invoice you and collect money owed to us by you
- To resolve disputes
- To troubleshoot problems
- To detect and protect us against error, fraud, and other criminal activity
- To enforce compliance with our Terms & Conditions and applicable agreements, and to protect the rights and safety of our members and third parties, as well as our own
- To comply with our legal obligations, including keeping records, and comply with any duties in the context of criminal or other investigations by competent authorities
When Registering for Auctions or Placing Bids
Auctioneers may access your Profile Data and limited Transactional Data such as bid history during the auction registration process to decide whether you are able to bid in their auctions or to fulfill their contractual obligation to arrange shipping.
When Using Services Provided by Third Parties
When using your personal data for the purposes listed above, we may have to share your personal data with third parties. These services include:
- Payment processor Stripe to ensure safe payments when you win items on our Online Platform and choose to pay via Capsule Payments.
- Email service providers and push notification tools who support us in sending transactional and marketing or promotional messages.
- Service providers who provide customer service and sales support tools.
- Service providers who assist us in securing the Online Platform against fraud.
- Analytics partners who allow us to analyze Online Platform usage so that we may make it easier, safer, and quicker to use.
- Advertising partners to inform you about products and services on third party sites.
We require third parties acting as data processors to respect the security of your personal data and to treat it in compliance with the law. We do not allow our third party service providers to use your personal data for their own purposes and only permit them to process your personal data for specified purposes and in accordance with our instructions.
When Legally Required
We may disclose your information where we are legally required to do so in order to comply with applicable law, governmental requests, a judicial proceeding, court order, or legal process, such as in response to a court order or a subpoena (including in response to public authorities to meet national security or law enforcement requirements).
We may share or transfer your information in connection with, or during negotiations of, any merger, sale of company assets, financing, or acquisition of all or a portion of our business to another company.
You can update the personal data associated with your account by visiting your Account Settings. You may also control the receipt of certain types of communications from Capsule in Account Settings. Some of these messages, such as transactional messages or legal notices, are required.
To delete or request a downloadable copy of your personal data from Capsule, contact us at. We may retain certain data as required by law or as necessary for our legitimate business purposes.
You have the following rights under data privacy laws with respect to your personal data:
- Request access to your personal data (commonly known as a “data subject access request”). This enables you to receive a copy of the personal data we hold about you and to check that we are lawfully processing it.
- Request correction of the personal data that we hold about you. This enables you to have any incomplete or inaccurate data we hold about you corrected, though we may need to verify the accuracy of the new data you provide to us.
- Request erasure of your personal data. This enables you to ask us to delete or remove personal data where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your personal data where you have successfully exercised your right to object to processing (see below), where we may have processed your information unlawfully or where we are required to erase your personal data to comply with local law. Note, however, that we may not always be able to comply with your request of erasure for specific legal reasons which will be notified to you, if applicable, at the time of your request.
- Request to restrict processing of your personal data. This enables you to ask us to suspend the processing of your personal data in the following scenarios: (a) if you want us to establish the data’s accuracy; (b) where our use of the data is unlawful but you do not want us to erase it; (c) where you need us to hold the data even if we no longer require it as you need it to establish, exercise or defend legal claims; or (d) you have objected to our use of your data but we need to verify whether we have overriding legitimate grounds to use it.
- Request transfer of your personal data to you or to a third party. We will provide to you, or a third party you have chosen, your personal data in a structured, commonly used, machine-readable format. Note that this right only applies to automated information which you initially provided consent for us to use or where we used the information to perform a contract with you.
- Object to processing of your personal data where we are relying on a legitimate interest (or those of a third party) and there is something about your particular situation which makes you want to object to processing on this ground as you feel it impacts on your fundamental rights and freedoms. You also have the right to object where we are processing your personal data for direct marketing purposes. In some cases, we may demonstrate that we have compelling legitimate grounds to process your information which override your rights and freedoms.
- Withdraw consent at any time where we are relying on consent to process your personal data. However, this will not affect the lawfulness of any processing carried out before you withdraw your consent. If you withdraw your consent, we may not be able to provide certain products or services to you. We will advise you if this is the case at the time you withdraw your consent.
The security of your personal data is important to us. We use industry-standard technical and organizational practices and procedures to protect your personal data from unauthorized or unlawful processing, accidental loss, and destruction or damage. Additionally, we limit access to your personal data to employees and third parties who have a business need to know.
We also collect and maintain aggregated, anonymized, or pseudonymized data which we may retain indefinitely to protect the safety and security of our Online Platform, improve our Services, or comply with legal obligations.
Capsule is headquarted in the United States. Your information, including personal data that we collect from you, may be transferred to, stored at and processed by us and our affiliates and other third parties outside the country in which you reside, including, but not limited to the United States, where data protection and privacy regulations may not offer the same level of protection as in your jurisdiction. We will take all reasonable steps to ensure that your data is treated securely and in accordance with this Policy.
Our Online Platform is not intended for children (persons under the age of 18), and we do not knowingly collect data about children. We ask that children do not submit any personal data. If you are under the age of 18, you may only use this Online Platform in conjunction with and under the supervision of parents or guardians.
618 East Ninth Street
New York, NY 10009
Terms Updated 5/19/2021