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Katalog 383 | Discoveries

time was accidentally overlooked, if the highest bidder does not want the bid to stand, or if there are other doubts as to the acceptance. If no bid is accepted even though a bid was placed, VAN HAM shall be liable to the bidder only in case of intent or gross negligence. A bidder shall remain bound by a bid that has been conditionally accepted for a period of one month. A conditionally accepted bid shall only become effective if VAN HAM confirms the bid in writing within one month from the date of the auction. V5. Purchase Price and Payment V5.1 The buyer shall pay the bid price plus a premium of 28 % on the first € 250,000.00 and a premium of 25 % on all sums exceeding this amount. This includes statutory VAT, which will, however, not be listed separately due to the margin scheme as per § 25a UStG (German Sales Tax Act). In case of items marked in the print catalogue with “*” as subject to standard taxation a premium of 24 %, on the first € 250,000.00 of the bid price and of 21 % on all sums exceeding this amount shall be levied on. Statutory VAT of currently 19 % shall be levied on the total of the hammer price and the premium. V5.2 Items which have been temporarily imported from a fiscal third country are marked in the print catalogue with “N”. When VAN HAM hands over such items to the buyer, he/she will become the importer and owes VAN HAM’s import VAT of currently 7 %. Items identified like this are subject to margine scheme and are thus offered under oncharging the import VAT as apportionment in the amount of 8 %. Upon request immediately after the auction the invoicing for these objects can be issued with standard taxation and without such apportionment. V5.3 Pursuant to § 26 (1) of the German Copyright Act (UrhG), the seller is obliged to pay the statutory resale rights fee on the sales proceeds of all original works of art and original photographic works whose creators died less than 70 years before completion of the sale, whereof the buyer shall bear a proportionate lump-sum charge amounting to: • 1.5 % of the hammer price up to € 200,000 • 0.5 % of the hammer price in excess of € 200,001 up to € 350,000, respectively • 0.25 % of the further hammer price of € 350,001 up to € 500,000, and • 0.125 % of the further hammer price in excess of this price up to five million, with an overall maximum of € 6,250. V5.4 When the buyer has purchased an item at a live webcast auction, he/she shall indemnify VAN HAM for any costs incurred by paying an additional fee in the amount of three (3) % of the accepted hammer price to VAN HAM. V5.5. For buyers entitled to deduct input tax (Vorsteuerabzug), the invoice may, upon request (and after prior notification) be made out in line with standard taxation (Regelbesteuerung). VAT is not levied on shipments to third countries (i.e. outside the EU) nor on shipments to companies in EU member states, provided the VAT ID number is stated. If participants in an auction transfer purchased items to third countries themselves, they shall be reimbursed for VAT as soon as proof of export and purchase (Ausfuhr- und Abnehmernachweis) has been provided to VAN HAM. V5.6 Invoices issued during or immediately after an auction must be verified; errors remain reserved to this extent. V5.7 Payment of the total amount due upon acceptance of a bid shall be made in cash, via Electronic Cash, by wire transfer or by bank certified cheque. Cheques shall only be accepted on account of performance (erfüllungshalber). Any taxes, costs, transfer or encashment fees (including any bank fees charged to VAN HAM) shall be borne by the buyer. Buyers who participate in the auction in person shall pay the purchase price to VAN HAM immediately after their bid has been accepted. Without prejudice to the fact that payment is due immediately, bids made in absence may be paid within 14 days of the invoice date without being deemed to be in default. V5.8 Auctioned items shall, as a matter of principle, only be handed over after receipt of full payment of all amounts owed by the buyer. V6. Collection, Assumption of Risk and Export V6.1 Acceptance of a bid establishes an obligation to collect the item. Absent buyers shall collect their items without undue delay after VAN HAM has notified them that their bid has been successful. VAN HAM shall organise the insurance and shipment of the auctioned items to the buyer only upon the buyer’s written instruction and at the buyer’s cost and risk. Since the purchase price is due immediately and the buyer is obliged to collect the items without undue delay, the buyer shall be in default of acceptance no later than 14 days after acceptance of the bid or post-bid, and consequently the risk shall be transferred to the buyer at this time at the latest, irrespective of the fact that the item has not yet been handed over. V6.2 If the buyer has not collected the items from VAN HAM three weeks after acceptance of the bid and/or relevant notification at the latest, VAN HAM shall request that the buyer collect the items within one week. At the end of said period VAN HAM shall be entitled to have the items at the cost and risk of the buyer • delivered to the buyer, or • stored in a contract warehouse, or • store the uncollected items itself. VAN HAM shall inform the buyer prior to storage. If VAN HAM stores the items in its own warehouse, up to 1 % p.a. of the hammer price shall be charged for insurance and storage costs. Irrespective of this, VAN HAM may alternatively demand performance of the contract or assert statutory rights for breach of duties. For the purpose of calculating any damage, reference is made to Clauses V5 and V8 of these Terms. V6.3 VAN HAM shall under no circumstances be liable for loss of or damage to items that have not been collected or handed over due to non-payment, unless VAN HAM acted with intent or gross negligence. V6.4 VAN HAM points out that specific objects (such as, in particular ivory, rhinoceros horn and tortoise shell) are subject to import and export restrictions (especially outside the European Union) which may prevent the shipment of such objects to third countries. It is the buyer’s own responsibility to find out whether an acquired object is subject to such a restriction, and whether it is possible to obtain any necessary authorisation in respect of the object in question. Should the buyer instruct VAN HAM with the shipment of the object, unless explicitly provided for otherwise, the customer shall procure the necessary authorisations (e.g. pursuant to the CITES rules), if any, as well as any other permits and documents and make these available to VAN HAM for the purpose of shipment of the object. Any costs, duties or charges etc. related to the import or export of the object shall be borne by the buyer. If known, such objects are identified by “‡” in the printed catalogue. Such reference, however, does not release the buyer from his responsibility to gather information on export terms and other regulations for import by himself. The absence of such a reference to any export terms does not have any meaning and does under no circumstances indicate that there are no such import or export restrictions. V7. Retention of Title, Set-off, Right of Retention V7.1 The title to an item acquired by auction shall only pass to the buyer upon full receipt of all payments owed as per Clauses V5 and V8. In the event that the buyer sells such an item without having satisfied all of VAN HAM’s claims, the buyer hereby already assigns by way of security (Sicherungsabtretung) to VAN HAM any claims arising from the resale. VAN HAM hereby accepts such assignment. V7.2 The buyer shall only be entitled to set off claims against VAN HAM that are unchallenged and that have been recognised by declaratory judgement. V7.3 The buyer shall have no right of retention based on claims arising from any prior transactions with VAN HAM. Insofar as the buyer is a merchant (Kaufmann), the buyer waives its rights under §§ 273, 320 of the German Civil Code (BGB). V8. Default V8.1 The purchase price shall be due upon acceptance of the bid. The buyer shall be considered in default 14 days from conclusion of the contract, i.e. acceptance of the bid or post-bid. Payment is to be made to VAN HAM in Euros. The same shall apply to cheques which shall only be recognised as fulfilment of the payment obligation once they have been unconditionally credited to the bank account. V8.2 In the event of a default in payment, default interest shall be charged at a rate of 1 % per month. The buyer shall be entitled to furnish evidence that a lesser or no loss was incurred. Apart from that, in the event of a default in payment VAN HAM may at its discretion choose to demand performance of the contract of sale or rescind the contract after setting a reasonable period for performance. In the event of rescission, all of the buyer’s rights to the item acquired by auction shall lapse, and VAN HAM shall be entitled to claim damages in the amount of the lost proceeds from the non-auctioned item (Consignor’s commission and premium). The buyer shall be entitled to furnish evidence that a lesser or no loss was incurred. If VAN HAM rescinds the contract and the item is re-offered at another auction, the defaulting buyer shall additionally be liable for any shortfall in proceeds compared to the prior auction and for the costs of the repeated auction; the buyer shall not be entitled to receive any surplus proceeds. VAN HAM shall be entitled to exclude such a buyer from making further bids at auctions. V8.3 One month after default has occurred, VAN HAM shall be entitled and, upon the Consignor’s request, required to disclose the buyer’s name and address to the Consignor. V9. Privacy Statement The bidder hereby agrees to the bidder’s name, address and purchases being stored electronically and processed by VAN HAM for the purpose of performing and implementing the contractual relationship, and for the purpose of providing information about future auctions and offers. Should the bidder fail to meet its contractual duties within the scope of performance and implementation of this contractual relationship, the bidder consents to this fact being included in a blacklist accessible to all auction houses of the German Association of Art Auctioneers (Bundesverband Deutscher Kunstversteigerer e.V.). The future collection and use of data may be objected to by deleting this clause or by submitting a subsequent declaration to VAN HAM, with effect for the future. V10. Silent Auction VAN HAM shall conduct a so-called “silent auction” for the items marked in the print catalogue with “+”. These General Auction Terms shall apply accordingly to such “silent auction”; however, bidders may only bid in written form or via the internet. Since the items in “silent auctions” are not called out, no bids can be made in person or by telephone. Bids for a “silent auction” must be submitted to VAN HAM in writing at least 24 hours before the start of the auction in order to be valid. V11. Miscellaneous Provisions V11.1 These General Auction Terms shall govern all relations between the client and VAN HAM. The client’s general commercial terms and conditions shall not be valid. No oral side agreements are valid. Any amendments shall be made in writing. V11.2 Place of performance is Cologne. If the client is a merchant, an entity under public law or a fund under public law or if the client has no general place of jurisdiction in the Federal Republic of Germany, the Courts of Cologne shall have jurisdiction over any disputes between VAN HAM and the client. Mandatory statutory provisions on exclusive places of jurisdictions shall remain unaffected by this provision. V11.3 German law shall apply; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. V11.4 The aforementioned provisions shall also apply mutatis mutandis to the private sale of items consigned for auction and, in particular, to post-sales, which are not governed by the provisions on distance sales as they form part of the respective auction. V11.5 In the event that any of the above provisions are invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision which most closely resembles the commercial content of the invalid provision. This applies correspondingly if the contract contains a gap in need of amendment. In cases of doubt the German version of the General Auction Terms shall prevail. Translations into other languages merely support the textual orientation. Van Ham Kunstauktionen GmbH & Co. KG Hitzelerstraße 2, 50968 Cologne, Germany Local Court Cologne HR A 375 General Partner: Van Ham Kunstauktionen Verwaltung GmbH Local Court Cologne HR B 80313 Managing Director Markus Eisenbeis (auctioneer for art and antiques, officially appointed and sworn by the Cologne Chamber of Commerce and Industry)


Katalog 383 | Discoveries
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