Each item (hereinafter referred to as “Lot” or “Property”) offered for sale by ELMO-LEWIS INC. (hereinafter referred to as “ELMO-LEWIS”, “we”, “us” or “our”) is subject to the terms and conditions set forth below, as supplemented in writing or otherwise by us at any time prior to sale. By submitting a Lot to be auctioned, you, as the Consignor (hereinafter referred to as “you”, “your” or “Consignor”), agree to be bound by the terms and conditions set forth below, as supplemented in the manner provided in this paragraph. It is your responsibility to read and understand them. If you do not agree to these terms and conditions, we ask that you do not participate in any ELMO-LEWIS auctions. You are also advised to read the Terms and Conditions of Sale, which are set forth separately, carefully.

1. Appraisal

1-1. Appraisal for Estimates
When submitting an image (original only) for appraisal and consignment consideration, please include known information regarding authorship, name of article, manufacturer, production year, provenance, origin, size (including, but not limited to, height, width and depth), medium, quality, whether or not the image is signed, rarity, limited edition number (e.g. 5/100), condition, whether or not it is in its original packaging, press information including catalogue raisonne, attachments and as much other information as possible. Please fill out the appropriate form which can be found on our website or in our catalogue, and return it to us by e-mail, mail or fax.

1-2. Estimates
We will examine Lot(s) with any pictures and information you have provided, and offer an estimate as to what we believe the price range should be at auction. You may sell the Property through us only if you agree to the estimate we provide.
An estimate is offered for bidders only as a measure for bidding price consideration, and not as representation or prediction of the actual price at which a Lot will sell, or the market price. You agree not to rely on estimates as a guarantee of the price at which a Lot will be sold.

1-3. Reserves
You will set the Reserve (the minimum price at which we may sell the Property) upon negotiated agreement with us. In the event there is a significant difference in our opinions as to the amount of the Reserve, and we are unable to achieve a settlement, we may cancel the Consignment Agreement. If a bid is less than the amount of the Reserve, the Lot will not be sold. Once the hammer price exceeds the Reserve, the Purchase and Sale Agreement shall be effective, and you will be unable to withdraw the Lot. A Reserve may equal, but may not exceed, the low estimate. If we have been unable to reach an agreement as to the amount of the Reserve prior to the sale, and we decide not to cancel the Consignment Agreement, we shall set the Reserve at 50% of the low estimate. The Reserve shall remain undisclosed, and we will not sell the Lot for less than the Reserve.
Estimates and Reserves are tentative figures until our specialists actually examine the Property.

2. Contract

2-1. “Interim Agreement”
We will issue an “Interim Agreement”, upon mutual agreement, for appraisal of the Property. (Both the estimate and the Reserve will be tentative until we examine the Property.) You shall arrange for shipment of the Property, at your own risk, to the place we specify, by the due date provided in the Interim Agreement. All expenses, including, but not limited to, packing, shipping, insurance and customs fees shall be borne by Consignor. We may, as a courtesy to Consignor, provide support for shipping or insurance services. We assume no responsibility for any act of any party or damage incurred in connection with any such service. We will not preserve any packing material except the original container.
Neither we nor our insurers shall be responsible for loss or damage resulting from causes customarily excluded by insurers, such as

1. inherent defects in the Property;
2. woodworms or other destructive organisms;
3. humidity, change of weather or other atmospheric conditions;
4. broken glass or damage caused by glass (e.g., in picture frames, bulbs, etc.);
5. expected wear and tear;
6. damage caused by natural disaster (including, but not limited to, earthquake, typhoon, volcanic explosion, snow melting, flood, tidal wave or mudslide)
7. damage caused by war, terrorism or radioactive contamination;
8. damage occurring while a Lot is in the care or custody of a restorer;
9. damage occurring while a Lot is in the care or custody of shipping and packing agents retained by you (even if recommended by us); and
10. other causes customarily excluded by insurers of similar types of property. The Property shall be insured by us as provided in this paragraph, unless, prior to our receipt of the Property, you provide us with
11. a certificate of insurance naming us as an additional insured and waiving any right of subrogation from a highly rated insurer and
12. a letter in which you waive any right to recover for loss or damage from ELMO-LEWIS and its insurers, both in forms acceptable to us in our sole discretion.

2-2. “Property Receipt”
We will issue a Property Receipt upon mutual agreement between Consignor and us as to the terms of consignment after our receipt and examination of the Property. A Property Receipt includes the following: Consignor’s name, a detailed description of the Property, estimate; Reserve (final), auction date, Lot number, account number, document number and due date for confirmation. The Property Receipt will be sent to you, and you will make a final confirmation or amend it if necessary. The contract of consignment between you and us shall be concluded upon your confirmation of the Property Receipt. After that time, we will issue a Consignment Agreement. You may not cancel the sale after the due date for the confirmation stated in the Property Receipt.

2-3. “Consignment Agreement”
The Consignment Agreement shall be made between ELMO-LEWIS and Consignor, and will be issued after our expert examines the Property. You will be required to provide government-issued identification such as a driver’s license, health insurance card or passport at the time we enter into our first contract with you. Properties are insured at Consignor’s expense and are stored from the time of receipt until they are sold at auction.

3. Payment Due to You

3-1. Payment Instructions
You shall complete the Payment Instruction form and provide us with the requested information regarding your account, after which time you will receive payment from us. The name of the account holder must match that of the Consignor. Additionally, the signature on the Payment Instruction form must match the signature on the Consignment Agreement.

3-2. Account
The account name must match the name on the Consignment Agreement. If you would like payment remitted to a third party’s account, you must complete the prescribed form. Payment to a third party will require additional time for processing, and we reserve the right to disapprove the payment.

3-3. As a general rule, we will pay you the Net Sale Proceeds (i.e., the hammer price, less any commission, fees and expenses due from you as stated above) within thirty-five (35) business days following the auction date. The proceeds will be directed to your designated account in the form of currency you request. The remittance may be unavoidably delayed, however, in the event that the purchaser is late in making payment. We do not guarantee payment will be received from the buyer, so we will make payment to you accordingly. We shall bear no responsibility in the event such a situation arises.

4. Commission/Fees/Expenses

You agree to pay the following to us, whether Lots are sold or not, in accordance with the terms and conditions set forth herein:

4-1. Commission - 10% of the hammer price of each Lot sold for less than 10,000,000 Yen, and 8% of each Lot sold for more than 10,000,000 Yen.

4-2. Insurance Fees - One percent of the hammer price of each Lot sold, or one percent of the low estimate of each unsold Lot.

4-3. Expenses - Remittance charges and all expenses incurred during the transportation of Property to our warehouse, including transportation fees from a port, airport or other point of entry into Japan; customs duties; revenue stamps; sales tax; insurance fees; customs inspection fees; costs for employing an appraiser and other related expenses.
We shall pay you the Net Sale Proceeds (i.e., the hammer price, less any commission, fees and expenses due from you as stated above).

5. Pre-Sale Activities

As to Property received by us, we have the sole right in our absolute discretion, and as we deem appropriate, to:

1. select, change, or reschedule the place, date and time for the auction of the Property (the “Auction”);
2. group the Property into a Lot or Lots;
3. compile the catalogue as we see fit, including to take photographs, allocate photographs or Lot numbers and to make drafts or models of the Property;
4. market and promote the sale of the Property and the Auction;
5. provide photographs, illustrations and descriptions of the Property for the catalogue and other marketing materials;
6. copyright in our name, and otherwise protect our rights, as to any marketing materials;
7. use the marketing materials before, during and after the Auction without payment to you for doing so;
8. set and revise estimates at any time, up to and including the time of the Auction; and
9. consult any expert, and, at your expense, research or employ other procedures to verify authenticity, attribution or other qualities of the Property whether before or after the Auction.

All copyrights of images and text contained in the catalogue, marketing reports, advertisements or in any other publication by us shall belong to us. No one shall have the right to use any such material without our prior permission. We will not be liable for any damages incurred in connection with the contents of the catalogue except in instances where we determine that we are responsible for the commission of a serious error.

6. Withdrawal

6-1. Withdrawal by Consignor
After receipt of the Property, or the time the contract becomes effective, you are not permitted to withdraw the Property without our agreement.
If you withdraw any Lot from sale for any reason, you will pay us all expenses incurred up to that time plus a withdrawal fee of 20% of the median amount of the estimate.

6-2. We may withdraw any Property at any time, in our sole discretion, if

1. there is doubt as to its authenticity, authorship or name of the Property;
2. there is doubt as to whether you hold title or as to your authority to place it for sale;
3. representations or warranties that you make to us are materially inaccurate; or
4. you have breached, or have indicated that you intend to breach, any provision of the Consignment Agreement or these Terms and Conditions.

All expenses, including shipping, packing, handling and insurance costs incurred for returns, shall be borne by Consignor.

7. Conduct of Sale

7-1. The Purchase and Sale Agreement, between ELMO-LEWIS as Consignor’s agent and the purchaser, shall be effective at the time the auctioneer hits the hammer. We have absolute discretion in all aspects of the conduct of any Auction, such as (but not limited to) the time, manner and place of exhibition and Auction of the Property and the rules and procedures relating to bidding and sale.

7-2. Bidding
Telephone bids, fax bids and online bids are executed by our staff as your agent. Neither you nor any third party acting on your behalf is permitted to participate in the bidding for your Property.

7-3. Unsold Property
In the event any Lot is not sold at the Auction, we shall so notify you promptly, and make efforts for a period of thirty (30) days to sell such Lot in a private sale utilizing the agreed Reserve. We are not responsible for any result of the sale. If we sell a Lot below the Reserve at our discretion, we shall pay you the same “Net Sale Proceeds” (i.e., the hammer price, less any fees, commissions or charges due from you to us) that you would have received if the Lot had sold at the Reserve.
If any Lot is unsold at a private sale, upon consultation with us, you must decide whether you intend to list the Lot for sale in the next Auction, whether you will collect the Lot from the storage location or whether you will arrange to have it shipped back to you. Any expenses for packing, handling and shipping shall be borne by Consignor.

7-4. Buyer’s Breach on Payment
If a buyer fails to make payment by the due date (fourteen (14) business days after the sale date), we will send the buyer a reminder of the amount due. If we determine that the buyer has no intent or capacity to pay, we will cancel the contract of sale upon the buyer’s default. We will utilize any available means to collect from the buyer any costs incurred, but we shall bear no responsibility for payment to the consigner for purchases on behalf of the buyer. If a Consignor initiates legal action against a buyer, we have absolute discretion to decide whether we will take action in the same way.

8. Storage

Property will be stored at our warehouse from the time it is received by us until it is transferred to the shipper. (Property to be exported will be delivered to the facility that handles packing, shipping and customs.)
Neither ELMO-LEWIS nor its insurers shall be responsible for loss or damage resulting from causes customarily excluded by insurers, such as

1. damage by natural disaster (including, but not limited to, earthquake, typhoon, volcanic explosion, snow melting, flood, tidal wave or mudslide);
2. damage caused by war, terrorism or radioactive contamination;
3. damage incurred after title has been passed to purchaser; or
4. damage incurred outside of our warehouse (after the Property has been transferred to the shipper).

9. Consignor’s Qualification and Responsibility

9-1. As Consignor, you warrant to us and to any buyer of Property that you are the sole and absolute owner who can pass the title to the Property to the buyer. If you are acting as an agent or fiduciary, your principal shall be the sole and absolute owner of the Property and consign all rights to you. We have no responsibility or liability, and will provide no indemnity, for expenses and costs incurred with respect to the vested interest, between you and your principal. According to circumstances, both we and the buyer shall be entitled, in our discretion, to exercise any remedies legally available to us.

9-2. You are responsible for furnishing us with all of the information and documents in your possession or control concerning the Property, including images (original only), information regarding authorship, name of article, manufacturer, production year, provenance, origin, size (including, but not limited to, height, width and depth), medium, quality, whether or not the image is signed, rarity, limited edition number (e.g. 5/100), condition, whether or not it is in its original packaging, press information including catalogue raisonne, attachments and as much other information as possible. In the event that you provide false or fabricated information, we will be entitled to exercise our right to return the Property. If the Property is listed in the catalogue, with the facts and information identified above, and any defects or faults the Property may have are not apparent or revealed before the sale, and the Property is in fact sold, we or the buyer shall reserve our rights to repeal the Purchase and Sale Agreement, return the Lot and charge you for damages incurred.

10. Replica (Copy, Reproduction)

If a buyer makes a claim for breach with respect to the description of a Lot identified in the catalogue on the ground that the Lot is a replica rather than an original, and we admit the Lot is a replica, the following action shall be taken:

1. When payment for purchase is not complete
   If the buyer has not paid for the Lot at the time it is determined to be a replica, we will cancel the Purchase and Sale Agreement and return the Lot to the Consignor.
2. When payment for purchase is complete
   If the buyer has paid for the Lot at the time it is determined to be a replica, we will request that the Consignor refund the amount paid in full. Any claim we make against the Consignor’s assets in the amount we paid to the Consignor shall have first priority as against any other claims.

11. Miscellaneous Provisions

11-1. Governing Law; Submission to Jurisdiction
The use of ELMO-LEWIS, and these Terms and Conditions of Consignment Sale shall be, unless otherwise stated, governed by and construed in accordance with the laws of Japan. All litigation in connection with the use of our website shall be, unless otherwise stated, under the jurisdiction of the Tokyo District Court or the Tokyo Summary Court for the first trial.

11-2. Severability
If any provision of these Terms and Conditions of Consignment Sale is held by any court to be invalid, illegal or unenforceable, such provision shall be disregarded and the remaining Terms and Conditions of Consignment Sale enforced in accordance with the original document and in accordance with applicable law.

11-3. Copyright Notice
All images and text contained in the catalogue or in any other publication by us, in whatever form, shall remain the property of ELMO-LEWIS, and the Consignor shall have no right of use of any such material without our prior permission. The copyright shall be protected by the copyright act, Consignment Agreement, Purchase and Sale Agreement and all related law in any appropriate state or country. The Consignor shall have no right of reproduction with regard to any such material, or right to assist with a third party’s reproduction.

11-4. Exemption from Liability
We disclaim any responsibility for inaccuracy or incompleteness of description in the catalogue or on our website. Consignor agrees that we shall have no liability for indirect, special, incidental or consequential damages resulting from the use of information. The website may not be accurately displayed under different circumstances (depending on, for example, the monitor or browser used). In such case, we shall bear no responsibility for any damages caused.

11-5. Information Collection and Use
We will collect and retain information from you (such as your name, e-mail address, mailing address, telephone number, identification card, business history and account information) for purposes of providing auction-related services. The information we collect will be used on an as-needed basis with respect to the performance of specific functions relating to our auctions (such as identification, mailing and contact, shipping of catalogue and Property, billing, credit management, post-sale services and collection and analysis of marketing data.) We will utilize information and input we obtain from people who use our services to assess and improve the quality of those services. If we intend to utilize your information for any purpose beyond that stated herein, we will inform you prior to such use. We will, however, cease the using the information we collect from you upon your request. We will not provide your information to any third party without your consent except in the following situations:

1. if it is needed by one of our affiliate companies with whom we have a confidentiality agreement;
2. if we are required by law to disclose the information; or
3. if we are required by the judiciary or a governmental agency to disclose the information.

We will respond, as promptly as possible, to any request for reference, modification or deletion of the information.
We take precautions to protect the personal information we store in our database from unlawful computer access, loss, damage, falsification and accidental distribution to unauthorized persons.

11-6. Changes to These Terms and Conditions of Consignment Sale
ELMO-LEWIS reserves the absolute right to modify or change the Terms and Conditions of Consignment Sale with or without notification.

Supplementary Provision
These Terms and Conditions of Consignment Sale are effective as of March 3, 2008.