1. Auction
1.1 VAN HAM Kunstauktionen KG (hereinafter referred to as ?VAN HAM?) conducts auctions in a public auction in terms of sec. 183, subsection 3, clause 1 German Civil Code (BGB) as commission agent on its own behalf and on account of the clients (the ?sellers?), who shall remain anonymous.
1.2 The items to be auctioned may be viewed and examined prior to the auction, potential buyers being liable for any damage caused by them to the items exhibited.
2. Condition, Warranty
2.1 The works of art that are up for auction and can be examined and viewed as part of the advance viewing are, without exception, used items. They are in a state of repair that corresponds to their age and provenance. Objections to the state of repair are only mentioned in the catalogue if, in the opinion of VAN HAM, they adversely affect the visual impression of the work of art as a whole. Lack of information regarding the state of repair does therefore not justify any claims based on a guarantee or agreement on the condition. Potential buyers may request a status report for every work of art. This report, be it verbal or written, does not contain any differing, individually negotiated terms, and expresses VAN HAM?s subjective assessment only. The information contained in the status report is provided to the best of our knowledge and belief. It does not constitute any guarantee or agreement on the condition and serves the purpose of the provision of non-binding information only. The same applies to general information of any kind, be it verbal or written. In all cases the actual state of repair of the work of art at the time of the acceptance of the bid is the agreed condition in terms of statutory provisions (sections 434 et seq. of the German Civil Code (BGB)).
2.2 All information contained in the catalogue is based on knowledge published until the date on the auction and on other general scientific knowledge available to the public. If an additional internet catalogue is prepared, the information in the printed version shall nevertheless prevail. VAN HAM reserves the right to correct catalogue information on the works of art that are to be auctioned. Said correction is made by written notice at the location of the auction and orally by the auctioneer immediately before the specific work of art is auctioned. The corrected information will replace the description in the catalogue.
2.3 Irrespective of the provisions laid down in fig. 2.1, the information in the catalogue relating to authorship, technique or signature of the work of art is part of the condition that is agreed with the buyer. VAN HAM provides no special guarantee resulting in additional rights (sections 443, 477 of the German Civil Code (BGB)); nor provides said agreement on the condition grounds for any liability stricter than that laid down in the law (section 276 (1) of the German Civil Code (BGB)). Characteristics of the condition other than authorship, technique or signature of the work of art are not contractually agreed, even if the work of art is presented for advertising purposes. The same applies to reproductions contained in the catalogue. The purpose of said reproductions is to give potential buyers an idea of the work of art; they are neither an integral part of the agreement on the condition nor a guarantee with regards to the condition.
2.4 If, prior to the expiry of the prescription period pursuant to fig. 2.6, the buyer proves that information in the catalogue concerning - authorship, - technique or - signature of the work of art is inaccurate and did not correspond to the acknowledged opinion of experts given on the date of the auction, he may rescind the contract and demand a repayment of the purchase price already paid by him pursuant to clause 5 from VAN HAM, if there are no third party claims with regards to the work of art and if the work of art is returned to the registered offices of VAN HAM in Cologne in an unaltered condition. The buyer has no right to reduce the purchase price as an alternative.Proof of inaccuracy is also considered as given if an internationally recognised expert on the author stated in the catalogue refuses to include the work of art in the index of works prepared by him (?Catalogue Raisonné?).
2.5 Damages claims against VAN HAM for legal and material defects and on other legal grounds (including compensation for futile expenses or cost for expertises) are excluded unless they are due to intentional or grossly negligent conduct by VAN HAM or to the breach of significant contractual duties by VAN HAM or are caused by injury to life or limb or damage to health.
2.6 All claims against VAN HAM shall expire one year after the work of art for which there is a successful bid is handed over, provided they are not due to a legal breach that is intentional.
3. Conduct of Auction, Bids
3.1 The price estimates stated in the catalogue are not minimum or maximum prices but are used only as an indication for the market value of the items and no warranty is given as to their accuracy. Information as to the value in other currencies is provided simply for informational purposes and is not binding. Low value items may be auctioned as group lots outside the catalogue.
3.2 VAN HAM reserves the right to combine, separate, offer out of sequence or withdraw numbered lots during an auction.
3.3 All bids are considered as submitted by the bidder on his own behalf and for his own account. If a bidder wishes to bid on behalf of a third party he must notify this 24 hours prior to the start of the auction, stating name and address of the party he is representing and submitting a written power of attorney. Otherwise the purchase contract is concluded with the bidder when the bid is accepted.
3.4 After presentation of a legal personal-document and admission to the auction, each Bidder will be given a bidder's number by VAN HAM. Only bids using this number will be included in the auction.
3.5 Bidders, so far unknown to VAN HAM, have to submit a written application no later than 24 hours before the Auction together with a document of identification. VAN HAM may ask for a recent bank reference or other reference for the admission to the auction.
3.6 With regards to goods consigned, the respective consignor is not permitted to place own bids or to have bids placed by third parties on his behalf. If the consignor, or a third party authorised by him, nevertheless submits a bid and if this bid is accepted, his status is equivalent to that of other bidders. Therefore, terms and conditions apply accordingly to the consignor. 3.7 VAN HAM is entitled to place a bit or series of bids on behalf of the Seller up to the reserve on the lot, without indicating he is doing so and whether or not other bids are placed.
3.8 Subject to VAN HAM?s consent, absentee bids may also be submitted, i.e. in writing, by telephone or via internet. Admissibility and procedure of internet bids are according to fig. 3.11 of these Auction Terms and Conditions only. Absentee bids are generally permitted if the bidder applied to VAN HAM for permission at least 24 hours prior to the start of the auction. The application must specify the work of art and list lot number and catalogue name. In case of doubt, the lot number is decisive; the bidder shall bear the consequences of any uncertainties. VAN HAM provides the service of executing absentee bids for the convenience of clients free of charge. VAN HAM is not responsible for failing bids or for errors relating the execution of bids. This does not apply where VAN HAM is responsible for a mistake made intentionally or through gross negligence. Absentee bids shall be equivalent to bids made in the auction.
3.9 The written bid must be signed by the bidder and specify the hammer price that is bid for the work of art (bid price without premium, droit de suite, customs charge where applicable, and VAT.). In the event of written bids, the interested party authorises the auctioneer to submit bids on their behalf. Written bids are considered as bids already submitted during the auction. If VAN HAM receives several written bids of the same amount for the same work of art, the bid that was received first shall be accepted if there is no higher bid. If the bids are received on the same day the decision shall be made by drawing lots. Each written bid shall be used by VAN HAM only in the amount necessary to outbid another bid that has been made.
3.10 In the event of telephone bids, a telephonist present in the auction hall is authorised to submit bids on instruction of the telephone bidder. Telephone bids may be recorded by VAN HAM. By applying for telephone bidding, the applicant declares that he agrees to the recording of telephone conversations. VAN HAM is not liable for setting up and maintaining telecommunications connections or for transmission errors.
3.11 Bids via the internet can be submitted as ?pre-bids? prior to the beginning of the auction, as ?live bids? during a live web-cast auction, or as ?post-bids? after conclusion of the auction according to the provisions stated hereinafter. Bids received by VAN HAM via internet during an auction will only be taken into account for the respective auction if it is a live, web-cast auction. Furthermore, bids via internet are only admissible if the bidder has been authorised by VAN HAM to bid over the internet by providing him with a user name and password. They only represent valid bids if they can be unequivocally matched to the bidder by means of such user name and password. Bids via internet are recorded electronically. The accuracy of the corresponding transcripts is accepted by the bidder/ buyer, who is nevertheless free to adduce evidence that the transcript is inaccurate. In all cases, the bid has to specify the hammer price that is bid for the work of art (bid price without premium, droit de suite, customs charge where applicable, and VAT). If VAN Versteigerungsbedingungen 2008-3 englisch.doc page 2/2 HAM receives several pre-bids submitted via internet of the same amount for the same work of art, the bid that was received first shall be accepted if no higher bid exists or is submitted during the auction. Each bid submitted via internet shall be used by VAN HAM only in the amount necessary to outbid another bid that has been made. Live bids are considered equivalent to bids submitted in the auction hall during the auction.
3.12 Subsequent sale is part of the auction. In the event of post-bids, the interested party shall provide instructions in writing or via telephone to submit a bid of a certain amount. A contract is concluded only after VAN HAM accepts the bid.
3.13 In case of written bids or bids submitted via telephone, as well as in case of subsequent sale, the provisions on distance contracts (sections 312 b ? 312 d German Civil Code (BGB)) do not apply.
4. Acceptance of Bids, Passing of Risk, Collection
4.1 A bid is accepted after the auctioneer has called the highest bidder?s bid three times. When a bid is accepted a purchase contract is concluded between VAN HAM and the bidder whose bid was accepted. VAN HAM may refuse to accept the bid or accept it subject to reservation. This applies in particular when a bidder, who is not known to the auctioneer or with whom there is no business relationship as yet, does not provide security in the form of bank information or guarantees until ? at the latest ? the start of the auction. In principle, however, no entitlement to having a bid accepted exists. If a bid is refused, the previous bid remains valid. If several individuals place the same bid and there is no higher bid after three calls, the decision will be made by drawing lots. VAN HAM may revoke acceptance of the bid and re-offer the item if a higher bid that was made in due time has been overlooked by accident, if the highest bidder does not want his bid to stand, or if there are other doubts as to the acceptance. If no bid is successful even though several bids were submitted, VAN HAM is liable to the bidder only for intent or gross negligence. A bidder remains bound to a bid that has been accepted subject to reservation for a period of one month. A bid accepted subject to reservation only becomes valid if VAN HAM confirms the bid in writing within one month after the date of the auction by submitting a corresponding invoice.
4.2 Acceptance of a bid imposes an obligation to collect the item. Risk passes to the buyer when the bid is accepted. Buyers who are present must collect the items immediately after the auction. In principle, the items are only handed over following payment in full of all sums owed by the buyer.
4.3 Buyers who are not present must collect the items immediately after VAN HAM has advised them that the bid has been successful. VAN HAM shall organise the insurance and shipment of the work of art to the buyer only upon the latter?s written instructions and at his cost and risk.
4.4 If the buyer has not collected the items from VAN HAM at the latest three weeks after his bid has been accepted and/or after he has been notified, VAN HAM will call upon the buyer to collect the items within one week. At the end of said period VAN HAM is entitled to have the items kept in a warehouse at the cost and risk of the buyer. VAN HAM shall inform the buyer prior to storage. Irrespective of this, VAN HAM may demand performance of the contract or assert statutory rights for breach of duties. For the purpose of calculating any loss, reference is made to fig. 5 and 7 of these terms and conditions. VAN HAM shall under no circumstances be liable for loss of or damage to items that have not been collected or not handed over due to non-payment, unless VAN HAM acted intentionally or with gross negligence.
5. Purchase Price, Payment
5.1. In addition to the bid award, the buyer must pay a premium of 25% on the first EUR 50,000 and a premium of 22% on all sums exceeding this amount. This includes statutory VAT, which will however not be stated due to differential taxation in terms of section 25a of German Turnover Tax Law. With regards to lots listed in the appendix as subject to standard taxation, a premium of 19% on the first EUR 50,000 and of 16% on all sums exceeding this amount will be levied, in addition to the bid award. Statutory VAT of currently 7% (for paintings, drawings, sculptures, prints etc.) and 19% (Objets d?art, carpets, jewellery, watches, silkscreens, offsets, photographs etc.) respectively will be levied on the sum of bid award and premium.
5.2. For buyers who have a right to deduct input tax, the invoice may, if desired, (after prior notification) be made out in line with standard taxation. VAT is not charged on shipments to foreign countries (i.e. outside the EU) nor ? when the VAT-ID no. is stated - to companies in EU member states. If parties participating in an auction take purchased items into foreign countries themselves, they will be reimbursed the turnover tax as soon as VAN HAM has the export and acquirer certificate.
5.3. Invoices issued during or immediately after the auction must be verified; errors remain reserved to this extent.
5.4. Payment of the total amount due upon acceptance of a bid must be made in cash or by bank certified cheque. Cheques are only accepted on account of performance. All taxes, costs, transfer or encashment fees (including the bank charges deducted by VAN HAM) are to be borne by the buyer. Purchasers who participate in person at the art auction must pay VAN HAM the purchase price immediately after the bid is accepted. Default in payment commences two weeks after the date of the invoice. Payments must be made to VAN HAM in Euro. The same applies to cheques, which are only accepted as performance once they have been fully cleared through the bank.
6. Retention of Title, Offset, Right of Retention
6.1 Title to the work of art passes to the buyer only upon receipt of all payments owed under fig. 5 in full. In the event that the buyer sells the work of art before he has met all of VAN HAM?s claims, the buyer hereby assigns all claims arising from the resale to VAN HAM. VAN HAM hereby accepts such assignment.
6.2 Against claims by VAN HAM, the buyer can only offset claims that are undisputed or that have been legally and finally determined.
6.3 The buyer has no right of retention based on claims arising from any prior transaction with VAN HAM. Insofar as the buyer is a merchant registered in the commercial register, he waives his rights under sections 273, 320 of the German Civil Code (BGB).
7. Default
7.1 The purchase price is due upon acceptance of the bid.
7.2 In the event of default in payment, default interest of 1% per month is charged. The buyer is entitled to provide evidence that the loss is less or that there is no loss. In addition, in case of default in payment, VAN HAM may elect to demand performance of the purchase contract or may rescind the contract after setting a suitable period for performance. In the event of rescission, all of the buyer?s rights to the purchased work of art shall lapse and VAN HAM shall be entitled to demand damages amounting to the lost fee for the work of art (consignor commission and premium). If the item is reauctioned at a new auction, then the defaulting buyer is additionally liable for any shortfall in proceeds compared with the earlier auction and for the costs of the repeat auction; he is not entitled to any excess proceeds. VAN HAM has the right to exclude him from further bids in auctions and to pass his name and address on to other auction houses for the purpose of refusing him access to further auctions.
7.3 One month after default has occurred, VAN HAM is entitled to and, if the consignor demands it, required to provide the latter with details of the name and address of the buyer.
8. Miscellaneous Provisions
8.1 These Auction Terms and Conditions shall govern all relations between the buyer and VAN HAM. The buyer?s General Commercial Terms and Conditions shall not apply. There are no verbal ancillary agreements. Amendments must be made in writing to be valid.
8.2 Cologne is sole place of performance and shall be the exclusive place of venue for all transactions between qualified merchants. German law shall apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
8.3 The foregoing provisions shall also apply mutatis mutandis to the private sale of the items consigned for auction.
8.4 If any of the above provisions are invalid in whole or in part, the validity of the remaining provisions shall remain unaffected thereby. In cases of doubt the German version of these Auction Terms and Conditions shall prevail.
