TERMS OF PUBLIC AUCTION
Ketterer Kunst GmbH
1.1 Ketterer Kunst GmbH seated in Hamburg (hereinafter referred to as "auctioneer") sells by auction basically as a commission agent in its own name and for the account of the consignor (hereinafter referred to as "principal"), who is not identified. The items possessed by the auctioneer (own property) are listed separately in the owner's register of the respective catalog; these Terms of Public Auction shall also apply to the auctioning off of such own property; in particular, the surcharge must also be paid for this (see Item 5 below).
1.2 The auction shall be conducted in the name and for the account of the auctioneer by an individual having an auctioneering license; the auctioneer shall select this person. Any claims arising out of and in connection with the auction may be asserted only against the auctioneer.
1.3 The auctioneer reserves the right to combine any catalog numbers, to separate them, to call them in an order other than the one envisaged in the catalog or to withdraw them.
2. Calling / course of the auction /acceptance of a bid
2.1 Calling shall basically begin at two thirds of the estimated price unless higher written bids have already been submitted or unless the auctioneer has agreed upon a minimum hammer price (limit) of more then 70% of the estimated price with the principal. The bidding steps shall be at the auctioneer's discretion; in general, the bid shall be raised by 10 % of the minimum price called.
2.2 The auctioneer may reject a bid especially if a bidder, who is not known to the auctioneer or with whom there is no business relation as yet, does not furnish security before the auction begins. Even if security is furnished, any claim to acceptance of a bid shall be unenforceable.
2.3 If a bidder wishes to bid in the name of another person, he must inform the auctioneer about this before the auction begins by giving the name and address of the person being represented.
2.4 Apart from being rejected by the auctioneer, a bid shall lapse if the auction is closed without the bid being knocked down or if the auctioneer calls the item once again; a bid shall not lapse on account of a higher invalid bid made subsequently.
2.5 The following shall additionally apply for written bids: these must be received no later than the day of the auction and must specify the item, listing its catalog number and the price bid for it, which shall be regarded as the hammer price not including the surcharge and the turnover tax; any ambiguities or inaccuracies shall be to the bidder's detriment. Should the description of the item being sold by auction not correspond to the stated catalog number, the catalog number shall be decisive to determine the content of the bid. The auctioneer shall not be obligated to inform the bidder that his bid is not being considered. The auctioneer shall charge each bid only up to the sum necessary to top other bids.
2.6 A bid is accepted if there is no higher bid after three calls. Notwithstanding the possibility of refusing to accept the bid, the auctioneer may accept the bid with reserve; this shall apply especially if the minimum hammer price specified by the principal is not reached. In this case the bid shall lapse within a period of 4 weeks from the date of its acceptance unless the auctioneer notifies the bidder about unreserved acceptance of the bid within this period.
2.7 If there are several bidders with the same bid, the auctioneer may accept the bid of a particular bidder at his discretion or draw lots to decide acceptance. If the auctioneer has overlooked a higher bid or if there are doubts concerning the acceptance of a bid, he may choose to accept the bid once again in favor of a particular bidder before the close of the auction or call the item once again; any preceding acceptance of a bid shall be invalid in such cases.
2.8 Acceptance of a bid makes acceptance of the item and payment obligatory.
3. Special terms for written bids, bids in the text form and via the internet, post-auction sale
3.1 The auctioneer shall strive to ensure that he takes into consideration bids by bidders who are not present at the auction, whether such bids are written bids, bids in the text form, bids via the internet or by telephone and received by him only on the day of the auction. However, the bidder shall not be permitted to derive any claims whatsoever if the auctioneer no longer takes these bids into consideration at the auction, regardless of his reasons.
3.2 On principle, all absentee bids according to the above item, even if such bids are received 24 hours before the auction begins, shall be legally treated on a par with bids received in the auction hall. The auctioneer shall however not assume any liability in this respect. In particular, he shall not be liable for bringing about and maintaining telecommunication connections and/or for transmission errors. This shall not apply in cases where there is intent or gross negligence on the part of the auctioneer.
3.3 It is possible to place bids after the auction in what is referred to as the post-auction sale. As far as this has been agreed upon between the consignor and the auctioneer, such bids shall be regarded as offers to conclude a contract of sale in the post-auction sale. An agreement shall be brought about only if the auctioneer accepts this offer. These Terms of Public Auction shall apply correspondingly unless they exclusively concern auction-specific matters during an auction.
4. Passage of risk / costs of handing over and shipment
4.1 The risk shall pass to the purchaser on acceptance of the bid, especially the risk of accidental destruction and deterioration of the item sold by auction. The purchaser shall also bear the expense.
4.2 The costs of handing over, acceptance and shipment to a place other than the place of performance shall be borne by the purchaser. The auctioneer shall determine the mode and means of shipment at his discretion.
4.3 From the time of acceptance of the bid, the item sold by auction shall be stored at the auctioneer's premises for the account and at the risk of the purchaser. The auctioneer shall be authorized but not obligated to procure insurance or conclude other measures to secure the value of the item. He shall be authorized at all times to store the item at the premises of a third party for the account of the purchaser. Should the item be stored at the auctioneer's premises, he shall be entitled to demand payment of the customary warehouse fees (plus transaction fees).
5. Purchase price / payment date / charges
5.1 The purchase price shall be due and payable on acceptance of the bid (in the case of a post-auction sale, compare Item 3.3, it shall be payable on acceptance of the offer by the auctioneer). Invoices issued during or immediately after the auction require verification; errors excepted.
5.2 Cash payments shall be made to the auctioneer in Euro (€). Checks and bills of exchange shall be accepted only on account of performance, on the basis of a separate agreement and after calculating all costs and taxes; the auctioneer shall not be liable for timely presentation, protesting, notification or return of dishonored checks or bills of exchange. If the auctioneer agrees to cashless payment, all costs and fees related to the transfer (including the bank charges levied on the auctioneer) shall be payable by the purchaser.
5.3 The sale shall be subject to the margin tax scheme or the standard tax rate according to the consignor's specifications. Inquiries regarding the type of taxation may be made before the purchase. In any case the standard tax rate may be requested up until 7 days after invoicing.
5.4 n the case of the margin tax scheme, a surcharge of 28% shall be levied on a hammer price of up to 200,000 Euro per individual item and 26 % starting from a hammer price of 200,000 Euro (which includes the turnover tax). The standard tax rate may be applied for entrepreneurs who are entitled to input tax relief for art and antiques. In the case of the standard tax rate, the purchase price shall consist of the hammer price and a 20 % surcharge on each individual item up to a sum of 200,000 Euro and a 18 % surcharge per individual item starting from 200,000 Euro. The statutory value added tax shall be added to this amount.
5.5 Export shipments in EU countries are exempt from value added tax on presenting the VAT number. Export shipments in non-member countries (outside the EU) are exempt from value added tax; if the items purchased by auction are exported by the purchaser, the value added tax shall be reimbursed to him as soon as the export certificate is submitted to the auctioneer.
6. Reservation of title
6.1 The auctioneer shall not be obligated to release the item sold by auction to the purchaser before payment of all the amounts owed by him.
6.2 The title to the object of sale shall pass to the purchaser only when the invoice amount owed is paid in full. If the purchaser has already resold the object of sale on a date when he has not yet paid the amount of the auctioneer's invoice or has not paid it in full, the purchaser shall transfer all claims arising from this resale up to the amount of the unsettled invoice amount to the auctioneer. The auctioneer hereby accepts this transfer.
6.3 If the purchaser is a legal entity under public law, a separate estate under public law or an entrepreneur who is exercising a commercial or independent professional activity while concluding the contract of sale, the reservation of title shall also be applicable for claims of the auctioneer against the purchaser arising from the current business relationship and other items sold at the auction until the settlement of the claims that he is entitled to in connection with the purchase.
7. Offset and right of retention
7.1 The purchaser can offset only undisputed claims or claims recognized by declaratory judgment against the auctioneer.
7.2 The purchaser shall have no right of retention. Rights of retention of a purchaser who is not an entrepreneur within the meaning of &cert; 14 of the German Civil Code (BGB) shall be unenforceable only if they are not based on the same contractual relationship.
8. Delay in payment, revocation, auctioneer's claim for compensation
8.1 Should the purchaser's payment be delayed, the auctioneer may demand default interest at the going interest rate for open current account credits, without prejudice to continuing claims. The interest rate demanded shall however not be less than the respective statutory default interest in accordance with &cert;&cert; 288, 247 of the German Civil Code (BGB). When default occurs, all claims of the auctioneer shall fall due immediately, even if checks and bills of exchange have been accepted.
8.2 Should the auctioneer demand compensation instead of performance on account of the delayed payment and should the item be resold by auction, the original purchaser, whose rights arising from the preceding acceptance of his bid shall lapse, shall be liable for losses incurred thereby, for e.g. storage costs, deficit and loss of profit. He shall not have a claim to any surplus proceeds procured at a subsequent auction and shall also not be permitted to make another bid.
8.3 The purchaser must collect his purchase from the auctioneer immediately, no later than 8 days after the bid is accepted. If he falls behind in performing this obligation and does not collect the item even after a time limit is set or if the purchaser seriously and definitively declines to collect the item, the auctioneer may withdraw from the contract of sale and demand compensation with the proviso that he may resell the item by auction and assert his losses in the same manner as in the case of default in payment by the purchaser, without the purchaser having a claim to any surplus proceeds procured at the subsequent auction. Moreover, in the event of default, the purchaser shall also owe appropriate compensation for all recovery costs incurred on account of the default.
9.1 All items that are to be sold by auction may be viewed and inspected before the auction begins. The items are used and are being auctioned off without any liability on the part of the auctioneer for material defects and exclude any guarantee. The used items shall be sold at a public auction in which the bidder/purchaser may personally participate. The provisions regarding the sale of consumer goods shall not be applicable according to &cert; 474 par. 1 sentence 2 of the German Civil Code (BGB).
9.2 The catalog descriptions are given to the best of our knowledge and belief and do not constitute any contractually stipulated qualities or characteristics within the meaning of &cert; 434 of the German Civil Code (BGB). On the contrary, these are only intended to serve as information to the bidder/purchaser unless the auctioneer has expressly assumed a guarantee in writing for the corresponding quality or characteristic. This also applies to expert opinions. The estimated prices stated in the auctioneer's catalog serve only as an indication of the market value of the items being sold by auction. No responsibility is taken for the correctness of this information. The fact that the auctioneer has given an appraisal as such is not indicative of any quality or characteristic of the object being sold.
10. Silent Auction
The purchaser's claims for compensation against the auctioneer, his legal representative, employee or vicarious agents shall be unenforceable regardless of legal grounds. This shall not apply to losses on account of intentional or grossly negligent conduct on the part of the auctioneer, his legal representative or his vicarious agents. Liability for losses arising from loss of life, personal injury or injury to health shall remain unaffected.
11. Silent Auction
The following additional regulations apply for the objects sold in a "silent auction":
11.1 The catalogue numbers marked as "Stille Auktion" are subjects of the silent auction. It is explicitly stated that bids for this silent auction can only be made in written form. Oral bids during the auction or phone bids will not be accepted. Bids must be made by 8 p.m. one day prior to the auction. No objects in the silent auction will be called up in the auction room.
11.2 Bids for the silent auction according to section 11.1 must be clear and complete in compliance with the auctioneer's requirements, in order to be accepted as such. We assume no liability for written bids via e-mail, due to potential uncertainties regarding transmission and delivery.
11.3 The bidder holding the highest bid by the auction's beginning (with regard to timely reception, as stated in section 11.1) will receive the award.
12. Final provisions
12.1 Any information given to the auctioneer by telephone during or immediately after the auction regarding events concerning the auction - especially acceptance of bids and hammer prices - shall be binding only if they are confirmed in writing.
12.2 Verbal collateral agreements require the written form to be effective. This shall also apply to the cancellation of the written form requirement.
12.3 In business transactions with businessmen, legal entities under public law and separate estates under public law it is additionally agreed that the place of performance and place of jurisdiction (including actions on checks and bills of exchange) shall be Munich.
Moreover, Munich shall always be the place of jurisdiction if the purchaser does not have a general place of jurisdiction within the country.
12.4 Legal relationships between the auctioneer and the bidder/purchaser shall be governed by the Law of the Federal Republic of Germany; the UN Convention relating to a uniform law on the international sale of goods shall not be applicable.
12.5 Should one or more terms of these Terms of Public Auction be or become ineffective, the effectiveness of the remaining terms shall remain unaffected. The ineffective term shall be replaced by an effective term that comes closest to the economic content and purpose of the ineffective term. This shall also apply to any unintended loophole.
12.6 These Terms of Public Auction contain a German as well as an English version. The German version shall be authoritative in all cases. All terms used herein shall be construed and interpreted exclusively according to German law.