Terms of Consignment, Ketterer Kunst GmbH Hamburg
1.1 The auctioneer has the right to offer all or any of the items specified in the enclosed list (Annex) either at a real auction held by the auctioneer, or at a virtual auction taking place on the Internet which closes when the set time runs out (referred to hereinafter as "Internet Auction"). At an Internet Auction, the item is put up for auction on the Internet at www.fine-art-auctions.de/com, an Internet platform offering reputable art dealers an opportunity to use this particular medium for holding auctions. At a real auction held by the auctioneer that is not an Internet Auction, the following provisions apply without restriction, apart from those provisions which specifically relate to Internet Auctions. If items are put up for auction at an Internet Auction, the following provisions apply unless they are marked "V", and No. 12 also specifically applies.
1.2 The auctioneer is instructed to sell the items named in the enclosed list (Annex) in its own name and for the Client's account (on commission) at an auction in accordance with the Terms of Auction, whereby both documents shall constitute integral parts of this contract, or to offer said items through the Internet at an Internet Auction (cf. No. 12), whereby the General Terms of Purchase given at www.fine-art-auctions.de/com-which likewise constitute an integral part of this contract – shall apply. The items are put up for sale by auction voluntarily.
1.3 The auction shall be carried out in the name and for the account of a person holding an auction license who is appointed by the auctioneer. Claims arising from or in connection with the auction may solely be brought against the auctioneer.
1.4 On being sent a catalogue, the Client shall be notified in good time by the auctioneer of the exact date of the auction, or of further auctions in the event of the item(s) failing to be sold at the first auction. (V).
1.5 The Client warrants and represents that it is the rightful owner entitled to dispose over the items being put up for auction, or that it is otherwise entitled to act either in its own name on behalf of the rightful owner, or in the latter's name as its authorised agent. If the auctioneer so requests, the Client shall be under obligation to provide relevant proof to this effect, such as e.g. an original power of attorney conferred by the rightful owner.
1.6 If it has not already done so, the Client shall consign the items being put up for auction to the auctioneer at its own expense and risk immediately after signing this contract. The auctioneer shall store the items free of charge until the auction is held or until they are sold by private sale, or at the most until the end of the period given in No. 7.1.
1.7 The Client grants the auctioneer, or any photographers, agencies etc. commissioned by it, the right to photograph the items it has consigned, to store and reproduce such pictures, and to publish them in an auction catalogue and/or in some other suitable medium (e.g. Internet and suchlike). Vis-à- vis the auctioneer and third parties, the Client waives asserting its right to the pictures and other protective rights. This also applies in the event of notice of termination being given, or of this contract otherwise ending.
1.8 The Client shall receive one copy of this contract.
2. Auctioneer's Insurance / Liability
2.1 Under the auctioneer's general insurance policy, the consigned items are insured after delivery against damage caused by fire, mains water, breakage, force majeure, theft or transport (insofar is transport is effected by the auctioneer or its staff) in return for a fee amounting to 1% of the hammer price, or of the reserve price if not sold, or of the settlement price at Internet auctions (see No. 4.1 for definition), or – if not sold at an Internet auction – of the agreed minimum sales price, plus statutory value added tax in each case. Frames are expressly excluded here.
2.2 The auctioneer is only under obligation to take out extra insurance if requested to do so in writing. The costs are to be refunded by the Client.
2.3 The auctioneer shall only be liable towards the Client for damage to the consigned items insofar as claims are settled by the insurance company. The amount of the insurance benefit depends on the reserve price/sales price agreed with the Client. The auctioneer is entitled to deduct a fee from the re- fundable amount, calculated in accordance with No. 4.1.
2.4 Further claims on the part of the Client are excluded, unless the damage is due to intent or gross negligence on the part of the auctioneer, its statutory representatives or its vicarious agents.
3. Estimated Price, Reserve Price, Conditional Acceptance of a Bid
3.1 The auctioneer estimates the value of the items put up for auction (including Internet Auctions). The estimated prices fixed by the auctioneer are given in the catalogue (V).
3.2 The minimum price to be attained at the auction is as a rule 20% beneath the lower estimated value, unless a higher reserve price has been agreed with the Client in writing (V). Reserve prices in currencies other than Euro (€) are converted in accordance with No. 6, applying the exchange rate in force on the day of the auction, or in the case of subsequent sale on the day of sale (V).
3.3 If the reserve price is not achieved, the auctioneer may conditionally accept a bid (V). In this case, the bidder shall remain bound by its bid for 4 weeks from the date of such conditional acceptance (V). The auctioneer shall inform the Client about the conditional acceptance of the bid, insofar as it is unable to otherwise attain the reserve price (V). If the Client fails to declare its position to the auctioneer in good time before the bid expires, then all the resultant disadvantages including non-conclusion of a contract shall be at the Client's expense (V). The auctioneer shall notify the Client of the date on which the bid expires (V).
3.4 The auctioneer is also entitled to conditionally accept a bid if there is an important reason for doing so (e.g. doubts about ownership or authenticity) (V). This reservation may be lifted by the auctioneer even without the Client's consent (V).
3.5 In divergence from No. 3.2, the contracting parties may also agree on sale by auction without fixing a reserve price (V).
3.6 For each new auction for which the item is entered, the contracting parties shall agree on a new reserve price well beforehand(V). In this event, the Terms of Auction shall continue to apply unaltered (V). In the event that no agreement to this effect is brought about, both parties shall have a special termination right within the meaning of No.9.2 (clause 2) (V). No.12.4 expressly applies to Internet Auctions.
4. Fees, Droit de Suite, Other Costs
4.1 In the following provisions, hammer price means the price which the acquirer pays at a conventional auction or post-auction sale, excluding the auctioneer's commission. The settlement price is the price which the buyer pays at an Internet Auction, excluding the auctioneer's commission. The purchase price visible to the respective bidder for any offer made on the Internet is not the same as the settlement price, which applies between the consignor and the auctioneer. As a rule, the auctioneer's commission payable by the buyer is 20%. The right is reserved to alter this in individual cases. Statutory value-added tax at the rate in force at the time must also be added where applicable.
4.2 The auctioneer is paid the following fees for its work: for items sold for a hammer/settlement price up to EUR 3,000: 30% of the hammer/settlement price; for items sold for a hammer/settlement price up to EUR 10,000: 20% of the hammer/settlement price; for items sold for a hammer/settlement price over EUR 10,000: 15% of the hammer/settlement price.
4.3 The auctioneer is still entitled to the fee pursuant to No. 4.1 if sale to a third party fails to take place for the Client's own personal reasons.
4.4 The Client is aware that in certain cases the auctioneer pays fees/royalties to the Verwertungsgesellschaft Bildkunst or other collecting societies for the visual arts (droit de suite in accordance with Sect. 26 of the German Copyright Act). For this reason the Client has to pay the auctioneer an additional fee by way of a contribution amounting to 1.5% of the sales price, plus value- added tax where applicable.
4.5 On top of this, the auctioneer may charge the Client the costs for any experts' reports, repairs and restoration work that are necessary in connection with the consigned items. The same also applies to other expenditures which the auctioneer makes in order to safeguard the Client's interests. If such expenditures exceed EUR 300 in amount in any individual case, the auctioneer shall inform the Client beforehand except in exigent circumstances. The Client has to pay for catalogue illustrations of the consigned items at a net rate of EUR 50 – EUR 600 each (depending on size), or a net rate of EUR 20 – EUR 30 each for Internet Auctions. Where applicable, statutory value-added tax is added.
4.6 The auctioneer remains entitled to the amounts laid down in No. 4.5 by way of compensation for expenses, even if the consigned items are not sold either at the auction, or in the post-auction sale pursuant to No. 6, or at the Internet Auction.
5. Settling Accounts, Due Date
5.1 The auctioneer undertakes to issue the Client with a written statement of account 4 weeks after the auction at the latest. The auctioneer may deduct its fees as well as all the costs having to be refunded to it.
5.2 If the amount is paid out to the Client in any currency other than Euro (€ ), the exchange rate in force on the day of the auction generally applies. The payment may also be made at the exchange rate applying on the day on which the auctioneer receives the buyer's/bidder's payment.
5.3 The amount payable to the Client according to the statement of account falls due 7 weeks after the auction, provided and insofar as the buyer/bidder has made payment to the auctioneer. If the buyer/bidder makes payment to the auctioneer later than 7 weeks after the auction, then the amount payable according to the statement of account shall fall due 1 week after the auction proceeds have been credited to the auctioneer. No. 12.5 applies to Internet Auctions.
5.4 If the auctioneer does not receive the auction proceeds from the buyer, then it shall not be liable towards the Client for performance of the contract even if it has provided the name of the buyer subsequent to notification of (non-)execution of the transaction. However, the auctioneer shall be liable for performance of the contract if it hands the item over to the buyer/bidder without the Client's permission before receiving payment in full.
5.5 If the buyer/bidder fails to perform its obligations to make payment or accept delivery, then the auctioneer shall be entitled – but under no obligation – to call in a lawyer of its choosing to assert its claims on the buyer/bidder either in or out of court. If it makes use of this right, then the Client shall reimburse the auctioneer for any court costs and lawyer's fees not refunded to it by the buyer/bidder or any other party to the litigation.
5.6 The Client may request assignment by the auctioneer of its claims vis-à-vis a defaulting buyer/bidder to payment of the hammer or purchase price and acceptance of the item acquired, insofar as the auctioneer itself does not want to assert the claims created by the sale and insofar as this is legally permissible. At the auctioneer's option, the claims vis-à-vis the buyer/bidder shall only be assigned up to the amount of the hammer price excluding the auctioneer's commission. The auctioneer shall then retain the full right to assert the claim to auctioneer's commission on the buyer/bidder. The auctioneer has the right to be provided by the Client at any time with information about progress in asserting such claims. Out of any payments received, the Client shall pay over to the auctioneer the amounts to which it is entitled under this contract, which amounts shall fall due for payment immediately. The hammer/purchase price including the auctioneer's commission/surcharge shall only be assigned if, in return for the assignment of such claims, the Client concurrently pays the auctioneer 50%of the fees pursuant to No. 4 and 30%of the auctioneer's commission/surcharge.
6. Post-Auction Sale (V)
6.1 If the consigned items are not sold at the auction where the lots are called, or if a bid accepted conditionally lapses because the condition has not been lifted, the auctioneer – without being under any obligation to act – shall be entitled to sell the items by private sale as long as they are available for subsequent auction (cf. No. 9.1), or – if no subsequent auction is held, or if the Client has expressly consigned the items for a specific auction only – for a period of up to 2 months after the auction closes. Such sale may not be for less than the reserve price/minimum sales price, unless an agreement pursuant to No. 3.5 has been met.
6.2 If a purchase contract is concluded, then the auctioneer may claim its fees pursuant to No. 4.2 and the reimbursement of its other costs pursuant to No. 4.4 and No. 4.5.
6.3 The post-auction sale is part of the auction and therefore covered by the auction. The Terms of Auction therefore also apply mutatis mutandis to the post-auction sale.
7. Returns, Termination of the Auction Contract
7.1 Any items not sold must be collected from the auctioneer by the Client within 3 weeks of receiving a request to this effect. After this period, they may be sent back by the auctioneer.
7.2 All return consignments of items are made at the Client's expense and risk.
7.3 If the items are not collected by the Client at the auctioneer's request, and if it is not possible to send them back to it, then the auctioneer shall be entitled to demand reimbursement of the storage costs from the Client. The auctioneer's right pursuant to Sect. 372 ff. of the German Civil Code (BGB) to deposit or sell items not collected by the Client despite a request to do so remains unaffected, as do any claims based on default in acceptance.
7.4 On defaulting in acceptance, the Client bears the risk of the item's deterioration or destruction, unless such deterioration or destruction is due to intent or gross negligence on the part of the auctioneer, its statutory representatives or its vicarious agents. The Client is aware that after the deadline pursuant to No. 7.1 has expired to no avail, the item is no longer covered by the auctioneer's insurance.
7.5 Even before expiry of the period given in No. 6.1, the auctioneer may request the Client to collect the item in accordance with No. 7.1 if it deems it not possible to find a post-auction buyer for the items within this period.
8. Client's Liability, Indemnification
8.1 The Client is liable towards the auctioneer for all material defects and defects in title in the items put up for auction.
8.2 The Client shall indemnify the auctioneer against all and any claims which may be brought against the latter in connection with the consigned items for whatsoever reason during the course of the auction or post-auction sale, insofar as such claims are not due to the fault of the auctioneer, its statutory representatives or vicarious agents. Indemnification covers both satisfying justified claims and entering a defence against unjustified claims.
8.3 Indemnification also covers the droit de suite pursuant to Sect. 26 (1) of the German Copyright Act. The Client is aware that the auctioneer has to give the author of the work the Client's name and address on request pursuant to Sect. 26 (4) of the German Copyright Act.
9. Termination, Damages
9.1 This contract applies as a rule for several auctions, otherwise - if the Client has only named one specific auction in the contract – only for the auction specified. If it only applies to one specific auction, then subject to the provision in No. 7.5 above, routine notice terminating it may not be given for a period of 2 months following the close of the auction at which the items consigned by the Client have been called. If it applies to several auctions, then subject to the provision in No. 9.2 below, routine notice terminating it may not be given by either party up to december 31 of the following year after the contract has been concluded. If it is not terminated by any party thereafter either, then it shall continue to run indefinitely until notice is given. If the contractual item has already been put up for auction by the time the Client’s notice of termination is received, then said notice shall only become effective if no bid for the item is accepted or if it is not sold at an Internet Auction.
9.2 The contract may be terminated by either party for important cause. An important cause shall be for example if an agreement on a new reserve price fails to be reached pursuant to No. 3.6. An important cause for the auctioneer shall in particular be if it deems the consigned item not sellable by auction, or at least not in accordance with the consignor's financial specifications. If the Client terminates the contract, then it shall refund to the auctioneer the costs pursuant to No. 4.5 in accordance with No. 4.6. If the auctioneer terminates the contract due to a breach of contract by the Client, then it shall be entitled to the fee pursuant to No. 4.2. If a hammer/sales price for calculating the fee pursuant to No. 4.2 is not available because the item has not been sold by auction or otherwise, then the provision given in No. 9.3 below shall apply accordingly.
9.3 If the Client terminates this contract without being entitled to do so pursuant to No. 9.1 or No. 9.2 above, then the auctioneer shall be entitled to claim damages from the Client in addition to the reimbursement of costs pursuant to No. 4.5. The amount of the damage shall depend on the lost profits which the auctioneer would have attained in accordance with No. 4.2. It is agreed that instead of the hammer/sales price, the estimated price – or, in the case of an estimated price range, the middle estimate – shall be used for calculating the fee. If no estimate has been made, then this may subsequently be done by the auctioneer. If the Client objects to the estimated value, then the auctioneer shall be entitled to instruct an independent expert to make an estimate. The auctioneer only has to pay the costs for this if the estimated value established by the expert is 10% less than that established by the auctioneer. Otherwise the Client has to pay the costs. Before commissioning the expert, the auctioneer may demand provision of a reasonable amount of security by the Client. If the auctioneer proves that it has sustained greater losses than just lost profits, then the Client shall be under obligation to compensate such losses.
9.4 If the Client withdraws a submitted work from an auction without being entitled to do so, then it shall be under obligation to compensate the auctioneer for the losses thus sustained. By way of compensation, the auctioneer 8.3 Indemnification also covers the droit de suite pursuant to Sect. 26 (1) of the German Copyright Act. The Client is aware that the auctioneer has to give the author of the work the Client's name and address on request pursuant to Sect. 26 (4) of the German Copyright Act. claims the fixed withdrawal fees usual in the branch, namely 12% of the call price before the catalogue goes to print, 18% of the call price between the catalogue going to print and the item being exhibited, and 24% of the call price for exhibited items. For Internet Auctions, the amount charged is 12% of the estimated value pursuant to No. 9.3 before the item is posted in the Internet, and 20% thereafter.
9.5 The Client is expressly allowed to prove that no damage or substantially less damage has been sustained.
10. Auction Date, Auction Period (Internet Auctions)
10.1 The auctioneer may postpone all or part of an auction or a subsequent auction or defer an auction period (Internet Auction) for important cause. In any such case, the parties shall remain bound by the auction contract provided the auction is subsequently held within a period of 2 months after the date originally scheduled. Force majeure is also deemed an important cause.
10.2 If the auction is not subsequently held within the period laid down in No. 10.1, then the contract shall lose effect. However, the auctioneer shall retain its entitlement to reimbursement of the costs pursuant to No. 4.5, unless the postponement is due to intent or gross negligence on the part of the auctioneer, its statutory representatives or its vicarious agents.
10.3 The auctioneer may cancel all or part of the auction for important cause. Force majeure is also deemed an important cause. In any such case, the auctioneer shall only have those claims vis-à-vis the Client that are specified in No. 4.5, unless the cancellation is due to intent or gross negligence on the part of the auctioneer, its statutory representatives or its vicarious agents.
11.1 Offsetting the auctioneer's demands against the Client's claims vis-à-vis the auctioneer is excluded, unless the Client's claims have been acknowledged or declared res judicata. The Client's right of retention is excluded. Right of retention on the part of a client who is not an entrepreneur within the meaning of Sect. 14 of the German Civil Code shall only be excluded insofar as such right is not based on the same contractual relationship.
11.2 In business dealings with entrepreneurs, these Terms of Consignment and the Terms of Auction shall apply exclusively. No other terms shall be integrated in the contract, even if they are not expressly refuted by the auctioneer.
12. Internet Auctions (auctions closing after a set time)
12.1 The above provisions of this auction contract also apply mutatis mutandis to Internet Auctions held in the Internet, unless they are marked "V" or unless some derogation from them is made below. The provisions of this No.12 apply exclusively to Internet Auctions.
12.2 An Internet Auction is not an auction within the meaning of either the German Ordinance on Commercial Auctions [Versteigerungsverordnung] or the German Civil Code, Sect. 156. The Client confirms herewith that it is aware of the "General Terms of Business for Making Purchases at www.fine-art-auctions.de /.com" provided on that website.
12.3 The auctioneer is entitled to offer the item at the Internet Auction for the minimum sales price (minimum offer) given in the annex to the auction contract. Prices in currencies other than Euro (€ ) shall be converted at the exchange rate applying on the day of the Internet Auction. A lower minimum offer is possible, subject to approval by the Client.
12.4 If no bidder is found who is willing to pay the minimum offer pursuant to No. 12.3, then the auctioneer may put the item up for sale by auction at another Internet Auction, quoting a 10% reduction in the minimum offer. If no bidder is found for this minimum offer either, then the auctioneer shall be entitled to put the item up for sale by auction at further Internet Auctions, quoting a 10% reduction in the minimum offer each time, but not less than 50% of the minimum sales price originally agreed. The parties to the contract may depart from this by written agreement.
12.5 Supplementing No. 5.3, the payment to the Client shall not fall due until the buyer's statutory right to revoke the purchase contract, e.g. under Sections 321d and 355 of the German Civil Code, has lapsed. The payment may be demanded back from the Client if it has already been paid out to the Client and the buyer subsequently legitimately revokes the purchase contract.
13. Final Provisions
13.1 Legal relations between the auctioneer and the Client shall be governed by German law excluding CISG.
13.2 In business with special trusts under public law, registered merchants and public corporations, it is agreed that Munich shall be place of performance and place of jurisdiction (including proceedings involving cheques and bills of exchange). This also applies if the Client does not have a general place of jurisdiction in Germany.
13.3 Oral ancillary agreements must be done in writing in order to become effective. The same applies to any waiver of the requirement for written form.
13.4 If any provision of this contract is or becomes invalid, this shall not affect the validity of the remaining provisions. The invalid clause shall be replaced by an operative one approximating as nearly as possible the business meaning and purpose of the invalid clause. The same applies in the event of the contract having any gap that requires filling.
13.5 The provisions on commission business laid down in the German Commercial Code (HGB), Sect. 383 ff. shall also apply to the contractual relationship.
13.6 This contract is available in German and in English. The German version shall be decisive at all times, whereby the terms are used and shall be construed exclusively in accordance with German law.
(Status November 2016)