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Auction Terms & Conditions
Conditions of Sale
THESE CONDITIONS OF SALE GOVERN THIS SALE: This Eighth Annual Sporting Art Auction (“Sale”) is governed by these Conditions of Sale (“Conditions of Sale”), as may be amended by KCG Enterprises, LLC d/b/a The Sporting Art Auction (“KCG”) by the posting of notices or by oral announcements made during the Sale from the auctioneer’s stand, online or otherwise (such notices and announcements shall be collectively referred to herein as the “Announcements”) (collectively, the Conditions of Sale and Announcements shall be referred to herein as the “Conditions,” or, individually, a “Condition,” as the context permits). All Sellers, consignors, agents, Owners, prospective bidders/purchasers, whether participating online via a Bidding Platform, by telephone, by proxy-agent, or by written, online or telephone absentee bid (“Bidders/Purchasers”), all other interested parties and all sales are therefore bound by and subject to these Conditions. By participating in the Sale, you acknowledge that you are bound by these Conditions.
The following websites will be available for online bidding: www.thesportingartauction.com, www.liveauctioneers.com, and www.invaluable.com (each a “Bidding Platform,” and collectively, the “Bidding Platforms”). To the extent these Conditions conflict with any Bidding Platform’s terms and conditions, these Conditions shall prevail.
Under these Conditions, “Seller” means a person or entity, including such person or entity’s agent (other than KCG), consignor, successor-in-interest, executor, trustee or personal representative, offering property for sale or selling all or any interest in property sold at this Sale, and is referred to as “Owner” in the Consignment Agreement.
- KCG as AGENT. Except as otherwise stated, KCG acts as agent for the Seller pursuant to the Consignment Agreement. The contract for sale of the property in this Sale is therefore made between the Seller of the property and the Purchaser.
- Presale Exam. All Bidders/Purchasers are urged to examine carefully and personally (or by agents, as the principal deems appropriate) the property in which you may be interested to determine its condition, size and whether it has been repaired or restored, etc. BEFORE the Sale and BEFORE bidding, as you are accepting any property purchased with all faults, including all conditions and defects, except for the Limited Warranty set forth in Condition 9. In all other respects, the AS-IS nature of this Sale remains in full force and effect.All prospective Bidders/Purchasers acknowledge presale exams may be conducted by physically viewing the property, if available, by video, by photos, or through an agent. All prospective Bidders/Purchasers further acknowledge that if the presale exam is insufficient as determined in the sole discretion of the prospective Bidder/Purchaser, said prospective Bidder/Purchaser shall not bid on a lot. Neither KCG nor SELLER provides any guarantee or warranty of any kind in relation to the nature of the property apart from the Limited Warranty in Condition 9. Except for the Limited Warranty in Condition 9, The property is sold “as is,” with all faults and defects and without any warranty or assumption of liability by KCG or by the seller.
- Privacy Notice. Notice is hereby given to all participants that KCG may record any or all portions of the Sale by video, audio or other means, which may be used by KCG or its affiliates in KCG’s sole discretion. You consent to the use, reproduction and distribution of such recordings, biographical and other information or descriptions, and images that may be provided, for inclusion in the catalogue or other marketing of the Sale or for any other advertising or promotional purpose by KCG or its affiliates, as deemed appropriate by KCG in its sole discretion.
- RIGHT OF EXCLUSION. KCG expressly reserves its common-law right, at its sole discretion, to refuse admission to the premises or participation in any Sale and to reject any bid; provided, however, such refusal shall not be made on the basis of race, creed, color, national origin, sex, sexual orientation, political affiliation or beliefs. By participating in the Sale, you agree to be bound by these Conditions.
- CATALOGUE AND DESCRIPTIONS. All statements in the catalogue entry or on a Bidding Platform for property, or made orally or in writing whether online or elsewhere, are statements of opinion and are not to be relied on as statements of fact. Such statements do not constitute a representation, warranty or assumption of liability by KCG of any kind. References in the catalogue entry or on a Bidding Platform to damage or restoration are for guidance only and should be evaluated by personal inspection by the Bidder/Purchaser or a knowledgeable representative. The absence of such a reference does not imply that an item is free from defects or restoration, nor does a reference to particular defects imply the absence of any others. Estimates 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. Except for the Limited Warranty set forth in Condition 9, neither KCG nor Seller is responsible in any way for errors and omissions in the catalogue, Announcements, or any supplemental materials. You are responsible for satisfying yourself concerning the condition of the property and the matters referred to in the catalogue entry or on a Bidding Platform, the Announcements, and any supplemental materials.
- Bidding by lot. Unless otherwise stated in these Conditions, all bids are per lot as numbered in this catalogue.
- DISCLOSURE AND RESERVE. In accordance with KRS 355.2-328(4) and other applicable laws, the right to bid in this Sale is reserved for all Sellers, including their disclosed and undisclosed agents, unless otherwise announced at time of Sale. Purchasers therefore agree and acknowledge that Sellers have the right to set reserves implemented by the auctioneer upon property so entered which are not disclosed to Purchasers and also have the right to conduct by-bidding as related to their entries. No reserve will exceed the low presale estimate stated in the catalogue, or as may be amended by the Announcements. KCG may implement such reserve by opening the bidding on behalf of the Seller and may bid up to the amount of the reserve, by placing successive or consecutive bids for a lot, or bids in response to other bidders. In instances where KCG has an interest in the lot other than its commission, it may bid up to the reserve to protect such interest. Sales results reported by KCG may or may not reflect the fair market value of any property going through the Sale.
- REGISTRATION. Bidders may participate in a sale by bidding online through a Bidding Platform or by telephone bid, subject to approval by KCG in its sole and absolute discretion. To bid online, Bidders must complete and sign a Purchaser Registration Form and register online at least 24 hours before the start of the Sale. To bid by telephone, Bidders must complete and sign a Purchaser Registration Form and register with KCG at least 24 hours before the start of the Sale. As noted in Condition 1 above, KCG encourages all Bidders, including online and telephone Bidders, to conduct pre-sale exams on any lot on which they may bid. All Bidders, including online and telephone Bidders, agree to these Conditions as well as such additional terms as KCG, in its sole and absolute discretion, deems appropriate, and to provide identification before bidding if requested. When making a bid, whether on the telephone or online, a Bidder accepts personal liability to pay the Purchase Price, as described more fully in Condition 7 below. KCG, in its sole discretion, may require the production of financial references, guarantees, deposits and/or such other security as KCG deems appropriate. If in KCG’s sole discretion a prospective Bidder/Purchaser does not satisfy the registration procedures, KCG may refuse to register such prospective Bidder/Purchaser to register or bid in the Sale and/or cancel the contract for sale between such prospective Bidder/Purchaser and the Seller.
- PURCHASE PRICE. When making a bid, a Bidder/Purchaser is accepting personal liability to pay the entire Purchase Price and associated charges, which shall mean the aggregate sum of (i) the highest bid recognized by the auctioneer at the fall of the hammer (the “hammer” price) , subject to KCG’s discretion as set out in paragraph (e) of this Condition 6, plus (ii) the Buyer’s Premium (as hereinafter defined), (iii) all applicable taxes, including, without limitation, sales or compensating use tax or equivalent tax, and (iv) all other applicable charges, which may include, for example, an additional fee and commission when bidding online (the sum of the amounts set forth in subparts (i) through (iv) of this paragraph (d) shall be referred to herein as the “Purchase Price”), unless it has been explicitly agreed in writing with KCG before the commencement of the Sale that the Bidder is acting as agent on behalf of an identified third party acceptable to KCG, and that KCG will only look to the principal for payment.
- AUCTIONEER’s Discretion; WAIVER. The auctioneer has absolute and sole discretion with respect to bidding and reserves the right to refuse or reject any bid, to advance the bidding in such a manner as he may decide, to withdraw or divide any lot, to combine any two or more lots, and, in the case of error or dispute, whether during or after the Sale, to determine the successful Bidder/Purchaser, to continue or re-open the bidding, to cancel the sale of any lot or to re-offer any lot and re-sell the item in dispute. If any dispute arises after the Sale, KCG’s sale record is conclusive. KCG, in its absolute and sole discretion, may execute order/absentee bids and accept telephone bids and online bids and will use reasonable efforts to carry out such bids; provided, however, KCG shall not be responsible for and does not accept any liability for any errors or omissions in connection therewith.
In the event of a technology issue of any type (including, but not limited to, malfunctions affecting, or resulting in a temporary inability to use, Bidding Platforms, computers, telephone servers, or any similar technological equipment or software), KCG reserves the right, exercisable in its sole and absolute discretion, to temporarily suspend bidding, extend the relevant bidding period, cancel the sale, or reoffer the property affected for sale. Any Bidder who places an order/absentee bid, a telephone bid, or an online bid expressly acknowledges and agrees as follows: (1) such bidding relies upon technology that may malfunction without warning and through no fault of KCG; (2) bidding is being provided on an “AS AVAILABLE” and “AS IS” basis, and KCG does not guarantee continual, uninterrupted or error free bidding; and (3) KCG shall be absolved from any and all liability related to or arising from any interruption in service, errors and/or omissions with respect to such bidding, and each Bidder/Purchaser who places any bid (regardless of its form) shall hold KCG harmless from any loss or claim resulting therefrom.
- Bidding. KCG reserves the right to reject any bid. Subject to the auctioneer’s discretion as set out in paragraph (e) of this Condition 6, the highest Bidder accepted by the auctioneer will be the successful Bidder/Purchaser and the striking of the auctioneer’s hammer marks acceptance of the highest bid and the conclusion of the sale between the Seller and successful Bidder/Purchaser. Winning Bidders/Purchasers will receive an email notification of any successful bid. Bidders/Purchasers are also requested to log in to the applicable Bidding Platform as soon as possible after the sale to obtain details of the outcome of their successful bid. KCG does not accept responsibility for notifying you of the result of your bids unless you are successful, and you should check as soon as possible after the sale to get details of the outcome of your bid.
- BUYER’S PREMIUM. As part of the Purchase Price, Purchaser agrees to pay to KCG a Buyer’s Premium, plus any applicable taxes and fees. The “Buyer’s Premium” is seventeen and one half percent (17.5%) of the hammer price of each lot up to and including $500,000, plus twelve and one-half percent (12.5%) of the hammer price of each lot in excess of $500,000. The parties acknowledge there may also be a Seller’s Premium, pursuant to the terms of the Consignment Agreement.
- Obligations of Purchaser.
- Payment of Purchase Price; TITLE AND RISK OF LOSS; DEFAULT; Remedies for non-PAYMENT; GRANT OF SECURITY INTEREST. Subject to fulfillment of all of the conditions set forth herein, on the fall of the auctioneer’s hammer, the contract between the Seller and the Purchaser is concluded, and the Purchaser thereupon will immediately pay the Purchase Price to KCG. Title and risk of loss in a purchased lot (including frames or glass where relevant) will not pass to the Purchaser until KCG has received the full Purchase Price in cleared funds. KCG is not obligated to release a lot to the Purchaser until title to the lot has passed and any earlier release does not affect the passing of title or the Purchaser’s unconditional obligation to pay the Purchase Price. If Purchaser fails to make timely payment of the full Purchase Price in cleared funds, the Purchaser will be in default and KCG, at its option, may exercise one (1) or more of the following rights or remedies (in addition to asserting any other rights or remedies available to KCG by law): (i) to impose from the date of Sale a late charge of eighteen percent (18%) of the total Purchase Price per annum if payment is not made within seven (7) days from the date of the Sale; (ii) tohold the defaulting Purchaser liable for the total Purchase Price and to commence legal proceedings for its recovery together with interest, legal fees and costs to the fullest extent permitted under applicable law; (iii) to cancel the sale of the property; (iv) to resell the property, whether at public auction or by private sale; (v) to elect to pay the Seller any portion of the sale proceeds; (vi) to set off against any amounts KCG or any of its affiliates may owe to the defaulting purchaser in any other transactions, the outstanding amount remaining unpaid by the defaulting purchaser; (vii) where amounts are owed by the defaulting Purchaser to KCG or any of its affiliates, 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 defaulting purchaser so directs;(vii) to reject at any future auction any bids made by or on behalf of the defaulting Purchaser or to obtain a deposit from the defaulting Purchaser before accepting any bids; (ix) to exercise all the rights and remedies of a person holding security over any property in KCG’s possession owned by the Purchaser, whether by way of pledge, security interest or in any other way, to the fullest extent permitted by the law; or (x) to take such other action as KCG deems necessary or appropriate. If KCG elects to resell the property under subparagraph (iv) above, the defaulting Purchaser will be liable for payment of any deficiency between the total amount due to KCG and the price obtained upon resale as well as any and all costs, handling charges, late charges, expenses of both sales, KCG’s commissions on both sales at KCG’s regular rates, legal fees and expenses, collection fees and incidental damages. If KCG paysany amount to the Seller under subparagraph (v) above, the Purchaser acknowledges that KCG shall have all of the rights of the Seller, however arising, to pursue the Purchaser for such amount.In addition, each Purchaser grants and assigns to KCG a continuing security interest of first priority in any property or money of or owing to such Purchaser in KCG’s possession or in the possession of any of its affiliated companies, and KCG may retain and apply such property or money as collateral security for the obligations due to KCG. KCG shall have all of the rights accorded a secured party under the Kentucky Uniform Commercial Code. KCG may file financing statements under the Kentucky Uniform Commercial Code (or any such applicable uniform commercial code if Purchaser is not a resident of Kentucky). Any claims relating to any purchase, including any claims under the Conditions, must be presented directly to KCG.
- Removal of Purchased property; DEFAULT. Unless otherwise agreed by KCG, all property must be removed from KCG’s premises by the Purchaser at Purchaser’s expense not later than fourteen (14) calendar days following the Sale. KCG’s liability for loss or damage to sold property shall cease no later than fourteen (14) calendar days after the Sale. Where purchases are not collected within fourteen (14) calendar days from the date of the Sale, whether or not payment has been made, KCG shall be permitted to remove the property to a third party warehouse at the Purchaser’s expense, and only release the items after payment in full has been made for removal, storage, handling, insurance and any other costs incurred, together with payment of all other amounts due to KCG.
- Packing, Shipping and INSURANCE. The Purchaser is solely responsible for packing, shipping and insuring (including reimbursement for damage or loss) purchased lots and will bear all costs associated therewith. KCG is not responsible for the acts or omissions in the packing or shipping of purchased lots. Packing, shipping and insuring purchased lots is at the entire risk of the Purchaser. Purchaser is responsible for obtaining adequate insurance coverage for any purchased lot(s) as of the fall of the hammer. Insurance costs through third-party carriers will be borne by the Purchaser and, in case of damage, insurance claims should be made to the third-party carriers.
- Taxes. Unless otherwise exempted by law, Purchaser will be required to pay any Kentucky sales and use tax, any applicable compensating use tax of another state or jurisdiction, and, if applicable, any federal luxury or other tax. Purchaser acknowledges and agrees to pay all applicable sales or compensating use tax or equivalent tax and indemnifies, defends, releases and holds harmless KCG, its affiliates, and Seller from and against any and all claims and damages related thereto.
- INTERNATIONAL DUTIES: For international Purchasers, the terms of sale are Delivered Duty Unpaid (DDU). It is Purchaser’s responsibility to ascertain and pay all international duties, customs charges, taxes and tariffs owed to the appropriate government entity or to be paid prior to shipment and/or delivery.
- RETENTION OF SOLD PROPERTY FROM PURCHASER. KCG shall be entitled to retain any items sold until all amounts due from Purchaser to KCG have been received in full, cleared funds or until the Purchaser has satisfied such other terms as KCG, in its complete discretion, may require, including, for the avoidance of doubt, completing any anti-money laundering or anti-terrorism financing checks we may require to our satisfaction. If such amounts are not paid or such checks are not satisfied by the Purchaser to KCG’s satisfaction, KCG shall be entitled to cancel the sale and to take any other actions that are required or permitted under applicable law.
- DISCLAIMER. Except for the limited warrantY of authorship expressly stated in Condition 9, there is no warranty or guarantee of any kind WITH RESPECT TO ANY PROPERTY OR ANY DESCRIPTION THEREOF, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES by KCG or Seller as to merchantability, fitness for a particular purpose, OR the correctness of the catalogue, DESCRIPTIONS ON A BIDDING PLATFORM, or ANY other description of the physical condition, size, quality, rarity, importance, medium, provenance, exhibitions, literature or historical relevance of any property. no statement anywhere, whether oral or written, whether made in the catalogue, ON A BIDDING PLATFORM, an advertisement, a salesroom posting or announcement, or elsewhere, shall be deemed such a warranty, representation or assumption of liability. KCG and Seller make no representations and warranties, express or implied, as to whether the Purchaser acquires any copyrights OR LICENSES, including but not limited to, any reproduction rights in any property. Except for the limited warranty of authorship expressly stated in condition 9, KCG is not responsible for errors and omissions in the catalogue, glossary, or any supplemental materialS, INCLUDING, BUT NOT LIMITED TO, ANY BIDDING PLATFORM. except for the limited warranty of authorship expressly stated in condition 9, all sales are made as is, with all faults.
- LIMITED WARRANTY OF AUTHORSHIP. As set forth below and in the Conditions of Sale and Announcements, KCG guarantees that the authorship, period, culture or origin, as the case may be, (collectively “Authorship”) is as set out in the Bold or capitalized type heading in the catalogue description of the lot, as may be amended by the Announcements (“Heading”) (“Authorship Limited Warranty”). The Authorship Limited Warranty does not extend to any information other than that contained in the Heading even if shown in BOLD or CAPITALIZED text. Only BOLD or CAPITALIZED text in the Heading indicates what is being warranted by KCG pursuant to the Authorship Limited Warranty. The Authorship Limited Warranty does not apply to supplemental material which appears below the Bold or capitalized Headings of each Lot, and KCG is not responsible for any errors or omissions in such material. Notwithstanding anything herein to the contrary, the Authorship Limited Warranty does not apply to any Heading or part of a Heading that is qualified. Qualified means limited by a clarification in a Lot’s description or by the use in a Heading of one of the terms listed in the section titled Glossary for Painting and Sculpture in the auction catalogue. For example, use of the term “attributed to” in a Heading means that the Lot is in KCG’s opinion probably a work by the named artist, but no warranty is provided that the Lot is the work of the named artist, and this Authorship Limited Warranty would not apply to any such opinion. KCG, in its reasonable discretion, shall determine whether the conditions for return of the property based on breach of the Authorship Limited Warranty have been satisfied. If so, KCG will refund the original Purchaser of record the Purchase Price. This Authorship Limited Warranty does not apply if: (i) the catalogue description was in accordance with the opinion(s) of generally accepted scholar(s) and expert(s) at the date of the Sale, or the catalogue description indicated that there was a conflict of such opinions; or (ii) the only method of establishing that the Authorship was not as described in the bold or capitalized heading at the date of the Sale would have been by means or processes not then generally available or accepted, unreasonably expensive or impractical to use or likely (in KCG’s reasonable opinion) to have caused damage to the lot or likely to have caused loss of value to the lot; or (iii) there has been no material loss in value of the lot from its value had it been in accordance with its description in the bold or capitalized type heading. This Authorship Limited Warranty is provided for a period of one (1) year from the date of the relevant auction, is solely for the benefit of the original Purchaser of record at the auction and may not be transferred to any third party. To be able to claim under this Authorship Limited Warranty, the original Purchaser of record must: (i) notify KCG in writing within three (3) months of receiving any information that causes the original Purchaser of record to question the accuracy of the bold or capitalized type heading, specifying the lot number, date of the Sale at which it was purchased and the reasons for such question; and (ii) return the lot to KCG at the original selling location in the same condition as at the date of the Sale to the original Purchaser of record and be able to transfer good title to the lot, free from any third party claims arising after the date of the Sale. KCG has discretion to waive any of the above requirements. KCG may require the original Purchaser of record to obtain, at the original Purchaser of record’s cost, the reports of two (2) independent and recognized experts in the field, mutually acceptable to KCG and the original Purchaser of record. KCG shall not be bound by any reports produced by the original Purchaser of record and reserves the right to seek additional expert advice at its own expense. It is specifically understood and agreed that the rescission of a Sale and the refund of the original Purchase Price paid is exclusive and in lieu of any other remedy which might otherwise be available as a matter of law, or in equity. KCG and the Seller shall not be liable for any losses or damages incurred or claimed, including but not limited to, (a) attorneys’ fees, loss of profits, loss of revenue, loss of business opportunity or goodwill, or interest; or (b) any special, incidental or consequential damages.
- DISCLAIMER OF IMPLIED DUTIES. KCG shall endeavor to protect the interests of all parties, but the duties and obligations of KCG to such persons shall be strictly limited to those expressly imposed upon KCG by these Conditions. All other duties and obligations, including fiduciary and other duties which might otherwise be imposed upon KCG by operation of law, are hereby expressly disclaimed, except that KCG shall be required to exercise that standard of care generally exercised by other comparable art auction companies.
- RIGHT TO WITHDRAW. KCG retains the right to withdraw any lot at any time before the sale for any reason in its sole discretion. KCG shall have no liability whatsoever for such withdrawal.
- Copyright. The copyright in all images, illustrations and written material produced by or for KCG relating to a lot, including, without limitation, the contents of the catalogue, is and shall remain at all times the property of KCG and shall not be used by the Purchaser, or by anyone else, without prior written consent of KCG.KCG and Seller make no representation or warranty that the Purchaser of a lot will acquire any copyright or other reproduction rights in it.
- Severability. The invalidity or unenforceability of any provision of these Conditions shall not affect the validity or enforceability of any other provision hereof, and any such invalid or unenforceable provision shall be deemed to be severable to the fullest extent permitted by law.
- Merger of Agreement. The Seller, Owner, or KCG may have made oral statements or published advertisements concerning the condition of the property described in this catalogue or this Sale generally. Such statements or advertisements do not constitute warranties, shall not be relied upon by the Purchasers and are not part of the contract for sale. The entire contract of sale is embodied in these Conditions (including, but not limited to the Announcements), and with respect to the Seller, the Consignment Agreement. These aforementioned documents constitute the final expression of the parties’ agreement and are a complete and exclusive statement of that agreement. Notwithstanding the above, Seller, Owner and Purchaser may enter into an agreement which modifies the limited warranties as provided herein; however, any such action by the Seller, owner and Purchaser cannot and shall not modify or alter the duties, responsibilities and rights of KCG as provided in these Conditions and the Consignment Agreement.
- FORCE MAJEURE. The lack of performance hereunder by KCG (but by no other party) shall be excused without liability if the failure to perform is due to an act of God, fire, casualty, injunction, strike or labor dispute, pandemic or disease (specifically including, but not limited to SARS, Legionnaires, COVID-19), act or decision of a governmental authority (specifically including, but not limited to, any government measures enacted to protect the public health from any pandemic, disease, or other public health emergency), or any other cause beyond the control of KCG. As used herein, “without liability” means that there will be no additional costs, expenses, or damages of any nature whatsoever.
- HEADINGS. The descriptive headings of these Conditions of Sale are inserted for convenience only and shall not constitute a part of these Conditions of Sale.
- Limitation of Action. Any cause of action arising out of the purchase and sale of any property at this Sale, whether it is based in contract or tort, shall be commenced not more than one (1) year after the sale or be forever barred. Provided, however, this limitation of action shall not apply to an action for the recovery from the Purchaser of the Purchase Price, plus interest and expenses, and including repossession of the property purchased at this Sale.
- GOVERNING LAWS; VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. The laws of the Commonwealth of Kentucky shall govern the construction of these Conditions and the rights, remedies and duties of the parties hereto. In the event of any litigation arising out of these Conditions or the transactions contemplated hereby, the parties agree that any action or suit shall be brought in a court of record in the County of Fayette, Commonwealth of Kentucky, or in the United States District Court for the Eastern District of Kentucky, and the parties hereby consent to the venue and jurisdiction of such courts. The owner, Seller, Bidder/Purchaser and KCG and their respective agents, voluntarily and intentionally waive any right that they may have to a trial by jury in respect to any litigation arising from or connected with this sale.
- Limitation of Liability. If, in spite of the terms of these Conditions and all disclaimers set forth herein, KCG is found to be liable to you for any reason, KCG shall not have to pay more than the Purchase Price actually paid by you to KCG. Notwithstanding anything contained herein, KCG will not be responsible to you for any reason for loss of profits or business, expected savings or interest, costs, damages, or expenses.
- NO WAIVER. The failure of KCG to exercise or enforce any right or provision of these Conditions shall not constitute a waiver of such right or provision, and no waiver of any term of these Conditions shall be deemed a further or continuing waiver of such term or any other term.