Auction Terms & Conditions
Schwenke Auctioneers/Woodbury Auction LLC
Terms and Conditions of Sale
Bidding on items indicates review of and acceptance of the following:
1. All goods are sold "AS-IS", "WHERE IS", "WITH ALL FAULTS" and all sales are final. Schwenke Auctioneers/ Woodbury Auction is not responsible for the correctness of lot lead lines, lot descriptions or statements of condition, and we do not represent or warrant the description, quality, size, importance, genuineness, authenticity, authorship, attribution, provenance, age, period, culture, source, origin or condition of any items and no statement made in our advertisements, in our catalogs either printed or online, at or during the auction, in the bill of sale, or otherwise or elsewhere, regardless of the degree of detail or specificity, shall be deemed such a representation or warranty.
Condition information and/or statements of condition are not included in auction item descriptions. Any condition information which may be included is for information purposes only and may not be relied upon as the equivalent of a formal Condition Report. Condition Reports must be requested in writing, and will be provided in writing. We do not give verbal Condition Reports. No employee or agent is authorized to or will make any statements regarding condition. Condition Reports given in response to bidder requests are issued in good faith, but may not be construed as statements of fact or an expert opinion or a guarantee of condition and may not be relied upon in substitution of or in lieu of physical inspection. All auction items are available for bidder examination prior to the auction. Bidding on an item signifies that you have examined that item, either personally or through an authorized agent, or that you have elected not to examine that item. Any request for additional photos will be responded to when possible and images will be added to the online catalog lot description. Requests for Condition Reports and/ or photographs submitted later than 24 hours before the sale will not be responded to, and we do not provide photographs post-auction. It is the responsibility of prospective bidders to examine lots in person or through an authorized agent and decide their level of interest. Neither the auctioneer, nor the consignor, is responsible for the accuracy of any printed or verbal descriptions of any Condition Reports. All weights and measurements are approximate and not guaranteed. Buyer relies solely on his/her own expertise and judgment regarding authenticity and condition when bidding on an item. If you require absolute certainty in all areas of authenticity and/or condition and the results of your own evaluation leave uncertainty in your mind, we recommend that you not bid on the item in question. As noted above, all sales are final at the fall of the hammer, and we do not give refunds. Any claim regarding condition of a purchased lot must be made within 15 days from the auction date when purchased or within 5 days after receipt of the item by the purchaser, whichever is later in time.
In the event of a dispute regarding any lot, the purchaser's sole remedy shall be rescission of the sale and restitution of the original purchase price and premium paid by such purchaser. Schwenke Auctioneers/Woodbury Auction shall have no liability for any damages, whether incidental, consequential or otherwise, arising out of or in connection with any sale to purchaser. No refunds will be made for any shipping and/or handling fees paid to a third party by the purchaser. No claims will be recognized if made by anyone other than the original purchaser. Schwenke Auctioneers/Woodbury Auction pays its consignors 30 business days after the day of sale. After that date, Schwenke Auctioneers/Woodbury Auction will not entertain any requests for refunds.
2. A buyer's premium will be added to the hammer price of each lot and is payable by the purchaser as part of the total purchase price.
a. In-House: The buyer's premium per lot for "in-house" purchases in our auction (not on any internet platform) is 22% of the final bid up to and including $500,000, and 17% for the remaining balance above $500,000. In-house purchasers who pay their invoices in full in cash or approved check within seven days of the auction will pay a reduced buyer's premium of 20%.
b. Internet: The buyer's premium per lot for purchases in our auction on Live Auctioneers is 27% and on Invaluable is 27%. There are no discounts to the internet buyer's premiums available for early payments or cash payments, and no exceptions can be made.
3. All in-house bidders are required to register in person and give full identification including valid driver's license and credit card information prior to the beginning of the auction and are required to use the number issued them when identifying themselves as the successful bidder. We also reserve the right to require other auction house credit references.
4. The auctioneer has the sole and exclusive power and authority, without exception and without liability, to (a) resolve any disputes between bidders, (b) determine whether to pass or re-offer any lot for sale, (c) reject or challenge any bid or advance at the start of the bidding or during the bidding, and (d) otherwise regulate the bidding and its increments. The auctioneer shall further have the right to reject any opening or subsequent bid that, in the auctioneers' sole opinion and discretion, is not commensurate with the value of the lot or is not within the published bid increments. At the auctioneer's discretion, no bid of less than one-half the low estimate will be accepted from any source: phone bidding, absentee bidding, internet bidding, or live bidding in the gallery. The highest bidder as determined by the auctioneer shall be deemed the purchaser. If the auctioneer receives more than one bid of the same value, only the first acknowledged will be accepted. If any dispute arises after the sale, the sale record maintained by Schwenke Auctioneers/Woodbury Auction is conclusive. Although Schwenke Auctioneers/Woodbury Auction will endeavor to execute accurately any absentee/phone bids, including internet absentee bids, these services are offered only as a convenience to clients who are not physically present at the auction, and we are not responsible for any errors or omissions which may occur in the exercise of these services.
"Auctioneer" as used in these Conditions of Sale means an employee or representative of Schwenke Auctioneers/Woodbury Auction duly licensed as an auctioneer or otherwise authorized by Schwenke Auctioneers/Woodbury Auction to conduct an auction under the laws of the State of Connecticut.
5. Schwenke Auctioneers/Woodbury Auction offers the internet bidding platform tool as a convenience to our clients.
(a) Approval: Approval to bid on any internet bidding platform is at the discretion of Schwenke Auctioneers/Woodbury Auction and applicants with less than three months recorded bidding history will not be approved to bid in our auction without providing credit information and photo identification together with a valid credit card. Depending on the circumstances, a deposit in the amount of 50% of the low estimate on all lots of interest may be required as a condition of approval to bid.
(b) Bids, Technical Issues: Please be aware that there is no time advantage to absentee bids submitted on the internet. Also, please be advised that in some cases an absentee bid submitted on the internet before or during the auction may not be received by the auctioneer conducting the sale, or if received may not be accepted. This may occur even when the internet absentee bid was placed earlier than an equivalent absentee bid placed with the house. No bids will be accepted after the auctioneer has closed the lot. The auctioneer has final discretion over which bids to accept, as described elsewhere in this document, and live bidders in the room are often recognized first by the auctioneer. Our experience suggests that internet bidders should bid their limit, not just the start bid, in order to have the best chance of winning a lot. There are frequently delays in transmission of bids over the internet, and in some cases internet bids may be received after a lot has been sold to another bidder and will therefore not be accepted. Internet bids are not visible to the auctioneer until the lot opens for bidding at the live auction, and even then may only be visible to the internet clerk and may not be accepted by the auctioneer , who is free to accept bids from any source and in any order in the exercise of his/her discretion. Absentee bids left directly with Schwenke Auctioneers/Woodbury Auction are time stamped and in the case of multiple absentee bids are executed competitively with respect to start bids and bid increments.
6. Title to each auction lot passes upon the fall of the auctioneer's hammer, and the purchaser assumes full ownership of and responsibility therefore at the fall of the auctioneer's hammer. Thereafter the property is at the sole risk of the Buyer and neither the Seller nor Schwenke Auctioneers/Woodbury Auction shall be responsible for any loss or damage.
7. Some lots carry reserves or minimum selling prices, which is a figure set by the consignor and Schwenke Auctioneers/Woodbury Auction below which a lot will not be sold. Schwenke Auctioneers/Woodbury Auction will execute the reserve bids on behalf of consignors. The reserve will not exceed the low estimate. Estimates are subject to change at any time prior to the offering of each lot.
8. As noted above in Section 4, absentee and telephone bids are accepted and will be executed when possible, although solely as a convenience to customers. Phone bids are accepted only on lots with a low estimate of $500 or greater, and are opened at one half the posted low estimate. Absentee bids are executed in the order received, therefore in the case of identical absentee bids on a lot, the first bid received will be recognized. Schwenke Auctioneers/Woodbury Auction will not be held responsible for any errors or omissions, or failure to execute bids accurately. Bidders are encouraged to submit absentee and telephone bid requests 24 hours prior to the auction, and Schwenke Auctioneers/Woodbury Auction reserves the right to decline acceptance of absentee and/or phone bid requests tendered after 5pm on the day prior to the sale. Purchases will not be available to absentee buyers for pick-up during the auction unless arrangements are made prior to the sale.
9. Items may be withdrawn at any time prior to being offered at the auction.
10. Payments accepted are cash, approved checks, money orders, cashier's checks, credit cards and wire transfers. We do not accept debit cards or Paypal. Credit card payments are accepted only up to $2000, unless the purchaser is present in the gallery and the card is swiped. Credit card payments not made on our secure internet payment portal or in person swiped are subject to an additional 3% administrative charge which will be reflected as an increase in the buyer's premium. Split payments (more than one form of payment on a single invoice) are not accepted. Domestic invoices over $2000 must be paid by cash, check or wire transfer. International invoices over $2000 must be paid by wire transfer. Valid credit card information may be required to register to bid, and a deposit may be taken toward any balance due resulting from successful bids. First time buyers must establish bank credit before the auction in order to have "approved check" status. References from other auctioneers may also be required or may satisfy the credit reference requirement. Purchases paid for with non-approved personal/business checks or international bank checks/money orders may not be released until seven days from receipt of payment or until payment clears. Wire transfers are accepted with a $25.00 additional wire transfer fee added to the invoice price.
PLEASE NOTE THAT SCHWENKE AUCTIONEERS/WOODBURY AUCTION TERMS AND CONDITIONS TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS SPECIFIED BY CREDIT/DEBIT CARD ISSUERS IN CONNECTION WITH PURCHASES BY CREDIT/DEBIT CARD. BY BIDDING AT OUR AUCTION YOU SPECIFICALLY ACKNOWLEDGE AWARENESS OF AND AGREEMENT WITH THIS PROVISION OF OUR TERMS AND CONDITIONS.
Payment is due within seven (7) days after the sale. If a buyer fails to make payment within ten (10) days after the sale, the buyer's premium increases by 3% and the account will be delinquent. Any buyer credit card on record will be charged the invoice total plus the additional 3% late fee. If no credit card is available, or if a credit card number supplied is invalid or a credit card charge is rejected, Schwenke Auctioneers/Woodbury Auction LLC shall be entitled to do any or all of the following, in its sole discretion:
a. After 15 Days - Void any or all purchases covered by the invoice and sell the item(s) to an underbidder or other bona fide buyer without liability to the delinquent buyer and without releasing said buyer from responsibility to pay for any remaining purchases or losses/damages incurred due to nonpayment.
b. After 30 Days - File a Civil Complaint against the buyer to recover any balance due plus court fees, interest, storage fees, administrative costs, and any other applicable financial hardship caused to Schwenke Auctioneers/Woodbury Auction LLC and/or the consignor or pursue other collection avenues to recover any and all losses.
c. After 45 Days - Re-offer the items for sale, either publicly or privately, and collect any remaining balance owed after such sale from the original buyer, including, but not limited to, the total balance remaining, court fees, interest, storage fees, administrative costs (including those related to re-selling the item(s) and any other related fees).
d. Charge interest at a rate of 1% per month throughout the entire frame of non-payment.
e. Reject further bidding or consignments by the buyer at any and all future auctions.
11. All purchases are subject to 6.35% Connecticut state sales tax unless the purchaser possesses a Connecticut sales tax exemption number, and provides Schwenke Auctioneers/Woodbury Auction with a valid, fully completed State of Connecticut Department of Revenue Services Sales & Use Tax Resale Certificate. Valid exemption numbers from other states are accepted if accompanied by a fully completed State of Connecticut Department of Revenue Services Sale & Use Tax Resale Certificate and a business card or letterhead.
12. ALL BUYERS ARE ENTIRELY RESPONSIBLE FOR ARRANGING AND PAYING FOR ALL PACKING AND SHIPPING OF PURCHASED ITEMS. PLEASE DO NOT CONTACT SCHWENKE AUCTIONEERS/WOODBURY AUCTION FOR PACKING OR SHIPPING QUOTES OR ASSISTANCE, AS WE DO NOT MAINTAIN AN IN-HOUSE SHIPPING DEPARTMENT - ALL SHIPPING IS OUTSOURCED. Please consider any and all shipping costs before you place an absentee bid or bid live. The value of any item may have no bearing on the cost to ship it and shipping costs will not affect your contractual obligations undertaken by registering to bid. While we do not maintain an in-house pack/ship department, as a courtesy and convenience to our customers we have listed below several shippers you may contact to provide packing/shipping estimates, arrange pickup of your items from Schwenke Auctioneers/Woodbury Auction, and arrange for packing/shipping to your location. A release statement with the name and contact information of your shipper must be emailed or enclosed with your payment to Schwenke Auctioneers/Woodbury Auction before any merchandise can be released. Handling of purchased lots by us is at the entire risk of the Purchaser and we will have no liability for any loss or damage to such items, regardless of the reason or cause.
Schwenke Auctioneers List of Third Party Shippers
Business and Shipping Center of Southbury
The UPS Store, Mansfield, CT
The Country Postman
(furniture and decorations)
Bush Dependable Delivery LLC
(East Coast, Midwest,)
3 Little Men
((East Coast to Chicago)
Capitol City Moving
(East Coast, West Coast across 110)
U.S. & Beyond Shipping
Art Delivery Service
(cross country art specialists)
North Wind Transport
Top Quality Delivery Services
(CT, NY, MA) (Large items)
Plycon Van Lines
(long distance -large items)
13. All merchandise purchased must be paid for within seven days and removed from the premises within fifteen days after the auction. See Section 10 regarding payments. Storage charges will accrue at a rate of $10 to $50 per day, depending on the item, beginning fifteen (15) days after the sale. Items left unclaimed for over thirty (30) days will be deemed abandoned.
14. Schwenke Auctioneers/Woodbury Auction adheres to all Federal laws applicable to the sale of items containing materials from endangered or protected animal species, and WILL NOT ACCEPT LIABILITY for the purchase of any item which may include any material including, but not limited to ivory, rhinoceros horn, tortoise shell, coral, whalebone or endangered woods. In the event an item is found to contain any of these protected products, it is THE SOLE RESPONSIBILITY OF THE BUYER to have conducted their own due diligence and to acknowledge and adhere to the applicable terms and conditions of any laws and regulations which apply to purchasing or the importation or exportation of such materials or items.
15. Employees of Schwenke Auctioneers/Woodbury Auction are not prohibited from bidding at the auction. It is possible that through their employment relationship they may have access to information not available to the public.
16. In all instances Schwenke Auctioneers/Woodbury Auction's or the auctioneer's joint or several interpretations of these conditions is final and binding on all bidders, and by placing a bid all bidders acknowledge having read and agreed to these Terms and Conditions.
Sebae Data Solutions, Inc.
SERVICE TERMS AND CONDITIONS
ACCEPTANCE OF TERMS
Sebae Data Solutions, (the makers of Auction Flex & HiBid (formerly Bidopia) hereafter referred to as "Sebae"), provides its service to you, subject to the following Terms & Conditions ("TAC"), which we may update from time to time without notice to you. The most current version of the TAC can be found found at any time by visiting the link: http://www.auctionflex.com/showtandc.ap
USE AND REGISTRATION
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended members. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our service. If you are registering as a business entity, you represent that you have the authority to bind the entity to the TAC.
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Bidder Information") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sebae has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sebae has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
DESCRIPTIONS OF SERVICE
Sebae provides the following services under the Auction Flex & HiBid trademarks: Integrated Web Service (for auctioneers), internet bidding (absentee, online-only, & webcast). You can learn more about these services in the following sections.
HIBID INTERNET AUCTION PLATFORM & WEB SERVICE DESCRIPTION
Sebae provides the HiBid (formerly Bidopia) Internet Auction Platform & Web Service ("HWS") under the HiBid trademark as a software solution for auctioneers wishing to extend the audience of their live auctions to the internet. The HWS provides various features including internet absentee bidding, internet-only auctions, and webcast auctions.
The HWS is able to changes its appearance to coincide with the website that it is powering. Accordingly, the HWS powers the www.hibid.com website as well as numerous Auction Flex customer websites. This ability to change appearance is a feature of the HWS. Much like internet merchant account providers can host a secure web page for a vendor to easily process payments, the HWS hosts certain portions of the auctioneer's website to easily enable advanced features such as internet bidding.
INTERNET ABSENTEE BIDDING
Internet absentee bidding allows you to place a bid for an item in advance of an auction. This allows you to place bids on lots without actually attending the auction.
Internet only bidding allows you to place a bid for an item prior to the auction lot closing online. In an internet-only auction there is no live auction.
Webcast auctions allow you to bid in real-time against other bidders or place pre-bids prior to a lot going "live".
Lots are sold in accordance with the Auctioneer's terms and conditions which are accessible from each lot's page. It is your responsibility to read and accept the Auctioneer's terms and conditions prior to placing your bid.
When you place a bid you are agreeing to be bound by the Auctioneer's & Sebae's terms and conditions. By placing a bid you are entering into a legally binding and enforceable contract. Please keep in mind that you are bidding against other internet bidders as well as floor bidders, phone bidders, and regular absentee bidders (this list does not constitute a complete list of bidder types but does highlight the common bidder channels).
The auctioneer, at their discretion, can approve or deny bidders. The auctioneer reserves the right to accept or deny bidders for any reason. Prior to approval the auctioneer may contact you to determine your credit worthiness. If the auctioneer approves your bid, the auctioneer will then process your bid in accordance with their terms and conditions.
Should your bid for a lot prove successful, the auctioneer may contact you to arrange for payment & shipping (if applicable). If the auctioneer required registration via a credit card, the auctioneer reserves the right to process your winning bids to the credit card provided during registration.
Sebae, through the Auction Flex & HiBid products & services, facilitates the internet bidding process between the Auctioneer & the bidder. Sebae is in no way a party to the transaction. Because Sebae is not a party to the transaction, you accept that you will have no claim or cause of action against Sebae in respect of the sale (or non-sale) of any Lot. If you have a dispute with an Auctioneer or another user of the Service with regard to the sale (or non-sale) of any Lot you agree that Sebae, its officers, agents, employees will not be liable for losses (including, but not limited to, loss of profits, special loss, indirect loss and consequential los), costs, damages, liabilities, claims, demands and expenses of any kind arising out of or connected with such dispute. You also accept that none of the aforementioned are under any obligation to take any action to resolve any dispute between you and an Auctioneer
Sebae is not responsible for any typographical, pictorial or technical errors in information about Lots on the Site as provided by Auctioneers. Sebae does not evaluate Lots and does not act as a specialist or expert on any related subject matter. Sebae makes no warranties or representation of any kind or nature with respect to Lots (including but not limited to representations or warranties as to the accuracy of description, genuineness, quality, authorship, attribution, provenance, period, culture, source, origin or safety). If you have any questions, e-mail the Auctioneer directly. In particular, make sure that you understand the Auctioneer's payment terms and shipping terms.
The Service requires you to login with your username and password prior to placing a bid on a Lot. Making bids with false information or with stolen credit card information is prohibited and illegal.
Your user name and password are required in order to place internet bids. Making bids in a false name or with an invalid or stolen credit card is prohibited. Each bid carries the computer coding of the Internet provider which allows the individual user to be traced and Sebae may at its discretion release this information to enable legal action to be taken. Sebae may, in its entire discretion, refuse or remove bids where it suspects that bids contravene this prohibition. By placing a bid, you are making a binding and irrevocable offer to purchase the Item at any price up to the maximum bid amount you submit. If you win, you must complete the transaction, subject to any contractual right or other right at law to rescind the contract in certain circumstances. Failure to complete transaction without lawful reason is not only a breach of your contract with the Seller but also a breach of this User Agreement.
The amount bid can be increased but cannot be decreased. The auctioneer may, at their discretion, allow you to withdraw and resubmit a bid in the case of bids containing an obvious typographical error. You may forward a request to withdraw a bid and resubmit a correct bid by immediately sending an email to the auctioneer, however, there is no guarantee that any bid will be withdrawn. Although Sebae will use best efforts to forward all bids, Sebae does not accept any responsibility for lost bids or problems with the recipient auctioneer's ability to process your bid. Moreover, Sebae cannot guarantee that bids received will be processed by the individual auctioneers.
Please note that Sebae's role is limited to the provision of the Site for dissemination and publication of information provided by the Sellers.
THE WINNING BID
The winning bid in an auction will be the highest bid that exceeds any reserve (if a reserve exists). In the case of equal bids, the earliest bid received will be the winning bid. If a higher bid is subsequently withdrawn or removed then the auctioneer shall have the right to accept the next highest bid.
NOTICE OF END OF SALE, PAYMENT & SHIPPING
After the sale has ended, the auctioneer will notify the winning bidder via phone, fax or mail that they have won. If you do not receive notice that you have made the winning bid and think that you are the top bidder, you should check with the auctioneer directly. You will make all payment for Items to the auctioneer in accordance with their terms and conditions.
BUYER'S PREMIUM, TAXES AND DUTIES
If you are a successful bidder, you are responsible for paying any buyer's premium, taxes and duties (including any VAT, sales tax and import duties) that may be imposed on the final price paid for an Item. Accordingly, it is your responsibility to check the applicable taxes and duties that may be imposed on an Item prior to bidding for it.
All material and content as provided by the Service is protected by copyright and similar rights. You can not use or make available any of that material for any commercial purpose.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
a. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. Sebae expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
b. Sebae makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the software will be corrected.
c. Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
d. no advice or information, whether oral or written, obtained by you from Sebae or through or from the service shall create any warranty not expressly state in the TAC.
LIMITATION OF LIABILITY
You expressly understand and agree that Sebae shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Sebae has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the service.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of of the previous two sections titled 'Disclaimer of Warranties' and 'Limitation of Liability' may not apply to you.
You agree to indemnify and hold Sebae harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
The TAC constitute the entire agreement between you and Sebae and govern your use of the Service, superseding any prior agreements between you and Sebae. The TAC and the relationship between you and Sebae shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and Sebae agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Marion, Florida. The failure of Sebae to exercise or enforce any right or provision of the TAC shall not constitute a waiver of such right or provision. If any provision of the TAC is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TAC remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TAC must be filed within one (1) year after such claim or cause of action arose or be forever barred.