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Buying

Conditions for Auction
 
The German version of these Conditions (AGBs) is legally binding

§ 1 The Auction

1. Organisation and Conduct of the Auction
The public Auction (in terms of § 383 sub-para. 3 German Civil Code / BGB) is prepared, organised, held and conducted by the DIE AUKTIONSPROFIS Ostermayer & Ostermayer GbR hereinafter referred to as DIE AUKTIONSPROFIS. A natural person appointed by DIE AUKTIONSPROFIS (Auctioneer) shall conduct the Auction on behalf of and for the account of DIE AUKTIONSPROFIS. will sell the DIE AUKTIONSPROFIS as commission agent in its own name for the account of the Consignor whose name is not disclosed. Items in the possession of DIE AUKTIONSPROFIS are specifically marked in the Catalogue (with an E ).

2. Execution of the Contract
The Buyer and DIE AUKTIONSPROFIS are agreed that all claims of the Buyer under the Auction are not directed against the Auctioneer but against DIE AUKTIONSPROFIS alone, unless otherwise determined by the present Terms and Conditions or by mandatory rules and regulations.

3. General Terms and Conditions
These Conditions for Auction shall be published in the Auction Catalogues, on the Internet and in the auction rooms. By placing an order or by submitting a bid, the Buyer expressly acknowledges the present Conditions for Auction.

§ 2 Conduct of the Auction
1. Bidder s Number
After presentation of a legal personal-document and admission to the Auction, each Bidder will be given a bidder s number by DIE AUKTIONSPROFIS. Only bids using this number will be included in the Auction. Bidders, so far unknown to DIE AUKTIONSPROFIS, have to submit a written application no later than 24 hours before the Auction, as well as a recent bank reference.
2. Start price
The Auctioneer determines the start price. As a general rule, bids are submitted outbidding in each case the preceding bid by 10 % in Euro.
3. Estimates
The estimates stated in the Catalogue of DIE AUKTIONSPROFIS (lower and upper estimate) are quoted in Euro. They serve as an indication of the current market value of the items to be auctioned off. Other quotations in foreign exchange, e. g. in US-Dollars, serve the purpose of information only and are not binding.
4. Catalogue Numbers
DIE AUKTIONSPROFIS may combine or divide any Catalogue numbers and, should there be a cause to do so, withdraw them from the sale or call them in an order different from that one stated in the Catalogue.
5. Absentee Bids
a) Subject to the approval by , DIE AUKTIONSPROFIS bids may also be submitted in writing (§ 3), by phone or via the Internet

(§ 4). Bids made on the phone may be recorded by .
When the Bidder applies for the DIE AUKTIONSPROFIS submission of bids by phone, he/she declares its consent to the recording of telephone calls.
b) As a general rule, absentee bids shall be admitted if the Bidder requested DIE AUKTIONSPROFIS at least 24 hours before the beginning of the Auction for such admission.
The auction item, its Catalogue number and its description in the Catalogue must be named in the application. In cases of doubt, the description in the Catalogue shall prevail. In unclear cases, the responsibility shall rest with the Bidder.
c) DIE AUKTIONSPROFIS does not assume any liability for the handling of absentee bids. In particular, DIE AUKTIONSPROFIS
shall not be liable for establishing and maintaining telecommunication connections or for transmission errors. This does not apply insofar as the DIE AUKTIONSPROFIS is responsible for an error on account of wrongful intent or gross negligence.
d) On the fall of the hammer, absentee bids shall enjoy the same status as bids submitted at the Auction. The legal provisions concerning distance selling (§§ 312b d BGB) shall not apply.

§ 6. Bidding for Third Parties
If a Bidder wants to submit a bid on behalf of a third party, he/she shall have to communicate this not later than 24 hours before the beginning of the Auction stating the name and the address of the person he/she represents and furnish a written power of attorney. Otherwise, the Purchase Contract is established with the Bidder when the hammer falls.

§ 7. Fall of the Hammer
a) A lot is knocked down when no higher bid is offered after a bid has been called three times.
b) In individual cases the DIE AUKTIONSPROFIS can knock down subject to approval which it shall draw attention to. A knock down subject to approval will be effective only if DIE AUKTIONSPROFIS confirms the bid within three weeks after the date of the Auction in writing by submitting a relevant
invoice.
c) DIE AUKTIONSPROFIS has the right to refuse the fall of the hammer or to reject a bid; this shall apply in particular when a Bidder is unknown to DIE AUKTIONSPROFIS and did not furnish a security in the form of bank references or guarantees by the time of the beginning of the Auction, at the latest. If a bid is rejected, the preceding bid shall remain in effect.
d) DIE AUKTIONSPROFIS may revoke the acceptance of a bid and offer the auction item for sale again in the course of the same auction if a higher bid made in time has been overlooked and the bidder has raised an immediate complaint to the Auctioneer or if there are any other doubts about the knocking down. Should DIE AUKTIONSPROFIS exercise the right, a initial fall of the hammer shall become ineffective.
e) The Bidder shall be obliged to take over a lot knocked down to him/her.

§ 3 Written Bids
1. The written bid (see also § 2 sub-para. 5) must be signed by the Bidder and state the hammer price offered for the Auction item (knock down price without premium, droit de
suite and value-added tax).
2. Written bids are regarded as bids already submitted at the Auction. If several written bids in the same amount for one and the same auction item are received by DIE AUKTIONSPROFIS, the bid that was received first will get the knockdown if there is no higher bid or if no higher bid is submitted. If several bids are received on one and the same day, the decision will be taken by drawing lots. Each written bid will be exhausted by DIE AUKTIONSPROFIS only to the extent necessary to outbid another bid that has been submitted.

§ 4 Bids via the Internet
1. Principle
DIE AUKTIONSPROFIS shall decide whether and how bids made via the Internet will be admitted as absentee bids (§ 2 subpara.
5). Bids via the Internet shall be admissible only if the Bidder was admitted by DIE AUKTIONSPROFIS for bidding via the Internet by sending a username and a password. Bids submitted in this manner shall be valid bids only if they can be attributed to the Bidder without any doubt by means of the username and the password. Bids transmitted via the Internet are recorded electronically. The correctness of the recording is acknowledged by the Buyer who has, however, the right to prove its incorrectness.
2. Bids Submitted Prior to the Auction Bids submitted via the Internet before the Auction shall be treated by DIE AUKTIONSPROFIS analogous to written bids pursuant to § 3.
3. Bids Submitted at the Ongoing Auction
Bids submitted via the Internet during the ongoing Auction shall be taken into consideration at the Auction in the same way as bids from the Auction Floor.
4. Bids Submitted After the Auction
Bids submitted via the Internet after the Auction shall be deemed to be bids for the conclusion of a Purchase Contract for the post auction sale. A Contract shall only be established when DIE AUKTIONSPROFIS accepts the bid.

§ 5 Purchase Price and Payment
1. Purchase Price
The purchase price comprises the hammer price plus premium. Charges as well as the statutory value-added tax may be added.
a) Standard Taxation
Works of art marked with the letter R in the Catalogue behind the lot number are subject to standard taxation. a. Premium DIE AUKTIONSPROFIS charges a premium on the hammer price. Before the Auction the clients will be informed by catalogue or the auctioneer about the asked charge.
b. Droit de Suite (artists resale rights) As a compensation for the droit de suite, which is
charged statutory pursuant the German Urheber Gesetz, DIE AUKTIONSPROFIS Villa pays to the VG Bildkunst in Bonn a flat charge to all original works of art which were created after 1900. A partial charge amounting to 1,5 % of the hammer price shall be borne by the Buyer.
c. Value-Added Tax
The statutory value-added tax of 7 % is added to the hammer price, the droit de suite and the premium in the case of Buyers residing within the EU (European Union). As far as photographs, reproductions and serigraphs are concerned the relevant value-added tax
for them amounts to 19 %.
b) Differential Taxation
For auction items without a separate marking, the purchase price shall be subject to the differential taxation pursuant to § 25a of the Turnover Tax Law for Buyers residing within the EU. DIE AUKTIONSPROFIS shall charge a different premium on the hammer price. The clients will be informed before the auction by catalogue or the auctioneer. In such case, the premium, the charge levied under the droit de suite as well as the statutory value-added tax are included in the purchase price and are not shown separately in the invoice. Buyers who are entitled to the deduction of input tax may upon their request be issued the invoice pursuant to standard taxation. This request shall be stated when the application for a Bidder s number is submitted.
c) Special Provisions for Importation and Exportation, Exemption from Value-Added Tax
No value-added tax will be charged for works of art which are to be delivered
- into countries outside the European Union (EU) or
- into countries within the EU to entrepreneurs for
commercial purposes and where the same have indicated their turnover tax identification number when receiving their Bidder s number pursuant to § 2 sub-para. 1.
If Buyers residing outside the EU take with them the auction item bought at the Auction to countries outside the EU, they have to furnish a security in the amount of the
statutory value-added tax. This tax will be refunded when the Buyer presents within one month of the receipt of the work of art proof for the exportation and purchase issued
by a customs office of the EU ( Ausfuhr- und Abnehmernachweis ).
Import turnover tax and customs duties accruing abroad shall be borne by the Buyer.
d) The aforementioned rates for levies charged under the droit de suite, for the value-added tax and the items on which they are levied are in conformity with current legislation. They may be subject to change.
2. Mode of Payment
Payments shall be made in Euro to DIE AUKTIONSPROFIS. If payments are made in a foreign currency, an exchange loss, if any, shall be borne by the Buyer. Cheques and other non cash payments will be accepted as conditional payment only. All taxes, costs and charges in connection with the payment (including the bank expenses charged to DIE AUKTIONSPROFIS ) shall be borne by the Buyer.

§ 6 Passing of Risk, Collection, Storage, Insurance and Dispatch
1. Passing of Risk and Collection
With the transfer of possession of the auction item to the Buyer, the risk of accidental loss or of an accidental deterioration of the work of art shall pass to the Buyer. The Buyer shall collect his/her acquisition not later than 7 days after having paid in full the amounts payable by him/her.
Thereafter, he/she will be in default of acceptance. DIE AUKTIONSPROFIS shall not be obliged to surrender the work of art before the Buyer has paid in full all the amounts due and payable by him/her.
2. Storage and Insurance
DIE AUKTIONSPROFIS shall store and insure the auction item in the amount of its purchase price during a period of one month after the day of the Auction. Thereafter, DIE AUKTIONSPROFIS has the right to have the auction item stored and insured at a forwarding company for auction item in the name of and for the account of the Buyer or to have the auction item art stored and insured on its own premises.
3. Dispatch
Upon the Buyer s written instruction to DIE AUKTIONSPROFIS to dispatch of the auction item, DIE AUKTIONSPROFIS shall organise an appropriate transportation of the auction item to the Buyer as well as a relevant insurance at the Buyers cost and, where the Buyer acts as an entrepreneur, at the risk of the latter.
§ 7 Reservation of Ownership and Offsetting
1. Reservation of Ownership
The title to the auction item shall pass to the Buyer only upon the payment in full of the invoice amount that is due and payable. In the event that the Buyer sells the auction item
before he/she has settled all amounts payable to DIE AUKTIONSPROFIS, the Buyer assigns already now to DIE AUKTIONSPROFIS, which accepts the assignment, all claims arising from the said resale.
2. Offsetting
Any offsetting vis-à-vis DIE AUKTIONSPROFIS may be made by the Buyer only with undisputed claims or claims recognised by declaratory judgement.

§ 8 Due date, Default and Withdrawal
1. Due date and Default
The purchase price shall become payable upon the knock down. Buyers who personally attend the Auction of works of art must pay the purchase price to DIE AUKTIONSPROFIS immediately
after a lot was knocked down to them. The Buyer gets in default with the payment two weeks after the date of invoice.
2. Consequences of Default
a) Without prejudice to further claims for damages, the purchase price shall bear interest at a rate of 1,5 % per month as from the day on which the Buyer is in default.
b) Two months after the commencement of the default, DIE AUKTIONSPROFIS shall be entitled and upon the request of the Consignor obliged to divulge the name and the address of the Buyer to him/her.
3. Withdrawal of DIE AUKTIONSPROFIS
a) If the Buyer is in default, DIE AUKTIONSPROFIS may withdraw from the Contract after having granted an additional period of time for payment of two weeks. In the event of a withdrawal, all rights of the Buyer to the auction item knocked down to him/her shall cease to exist.
b) In such case, DIE AUKTIONSPROFIS shall be entitled to demand from the Buyer damages in the amount of lost proceeds from the auction item (Consignor s commission and premium), insurance costs not borne by the consignor (flat-rate) as well as costs accrued for the illustrations in the Catalogue. Furthermore, the Buyer shall be liable for transportation, storage and insurance costs until the day of the return of the auction item or the date on which the work of art is offered once again for sale by auction. If the auction item is auctioned off at the next auction or at the auction following it, the Buyer shall also be liable for any deficiency in proceeds. The Buyer shall not be entitled to any additional proceeds. DIE AUKTIONSPROFIS shall have the right to exclude him/her from further bidding at the Auction and to pass on his/her name and address to other Auction Houses for purposes of his/her exclusion.

§ 9 Liability of DIE AUKTIONSPROFIS
1. Information in the Catalogue and Specification of the auction item.
a) All auction items, which come to auction can be checked and inspected at the preview. They are basically secondhand. They are in a condition, which corresponds to their age and provenance. Criticism of the condition shall only be mentioned in the Catalogue if the optical impreses apply to claims of damages which are based on intent or gross negligence on the part of DIE AUKTIONSPROFIS, on the violation of a material cardinal obligation by DIE AUKTIONSPROFIS or on the death of or injury to an individual.
4. Statute of limitations
All claims vis-à-vis DIE AUKTIONSPROFIS shall become statute-barred one year after transfer of possession of the auction item. This does not apply to claims among sub-para 3/sub-section 3;
such claims shall be subject to a limitation period of two years with the exception of claims among § 438 sub-para 3
BGB.

§ 10 Post Auction Sale
During a period of two months after the date of the auction, auction item which were not knocked down in the course of the auction may be sold by way of Post Auction Sale. Such
sale is considered as a part of the auction itself; the party interested in bidding shall place the according order to DIE AUKTIONSPROFIS amounting to a given sum either personally or in writing, by telephone or via the Internet.
 

§ 11 Other Provisions
1. Written Form
The present Conditions for Auction govern all relations between the Buyer and DIE AUKTIONSPROFIS General terms and conditions of trading of the Buyer do not apply. Verbal collateral agreements do not exist. Amendments must be made in writing to become effective.
2. Conditions for Auction in Several Languages
If the Conditions for Auction are available in several languages, the actuell German version shall always prevail.
3. Applicable Law
The law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on the International Sale of Goods does not apply.
4. Place of Performance and Place of Jurisdiction
The place of performance and the place of jurisdiction if the latter can be agreed shall be Dietramszell.
5. Severability Clause
If any provision of these Conditions for Auction should be or become invalid or enforceable, the validity of the remaining provisions hereof shall not be affected. Such invalid or unenforceable provision shall be converted by mutual consent of the parties, to the extend possible, to a valid and enforceable provision which comes as close as possible to the business object of the original provision.
 
§ 12 Arbitration Clause
All disputes for arising in connection with these contract or its validity shall be finally settled on accordance with the Arbitration Rules of the Chamber of Industry and Commerce Wiesbaden without recourse to the ordinary courts of law. The place of arbitration is München. The arbitral tribunal consist of 3 arbitrators. The substantive law of Germany BGB & HGB is applicable to the dispute. The language of the arbitral proceeding is German.
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