Terms of public auction
as amended on 01.11.2011
With the participation in our auction, whether it is personal, by phone, written, by telex or electronic participation, are the following terms and conditions recognized; The terms and conditions applies to all auctions and all the associated business, sales as well as committal. These regulations have precedence over the consignment agreement, when the same issues governs: For the rest does The terms of public auction completes the Terms of Consignment Agreement.
1. The Auktionshaus Kloss, Rosenthaler Str. 16, 13127 Berlin sales in public auctions according to § 383 Abs. 3 S. 1 BGB in the name and on behalf of the consignor. It is a voluntary auction. Every consignor is listed through a number, so it is possible to recognize which item is from which consignor.
2. Every item that is auctioned is without exception used and has, because of age and origin, a preserved condition. During the pre-auction viewing time, you can prove and inspect the items. The information in the catalogue and other forms of presentation (for example internet), which in most cases depends on the information from the consignor, are established after decided knowledge and conscience. They are no warranted properties in terms of §§ 459 ff. BGB, however unwatchable general expressions of opinion and not claims of facts. Every type of information, written or verbal, does only give an expressed subjective assessment of the auction house and are no individual statement, grantee or agreement on the legal and factually nature. If additional forms of presentation are used to the catalogue, nevertheless is only the text in the catalogue relevant (not the pictures). It is reserved to correct information during the auction.
The preserved condition of an object is not always mentioned, so that missing facts can´t be justified by the agreement on the legal and factual nature. Damages are only mentioned in the catalogue after the assessment of the auctioneer when the overall impression of the object is clearly affected. In this respect results this also in missing facts about reparations, restorations, supplements or other procedures on the auction object, not that the object is in a perfect condition.
Items of lower value can be sold as a group of items without being mentioned in the catalogue.
Liability and limitation
3. Liabilities of the auctioneer because of obvious or hidden faults, loss or damages of the sold object are explicit excluded, in case that legal liability is not required by force. Refund for damages against the auctioneer because of defect of title and defect as to quality as well as other legal terms, including compensation for efforts of expenses as well as for expert costs are excluded, as long as they are not founded on intentional or gross negligent by the auctioneer, or have their cause of injury in life, body or health. The liability for simple negligence is restricted by the height of every knock down. For simple careless behavior from the auctioneer and the person, which he/she represent, exist only a liability, when this affects the injury of important contract obligations.
4. Objects from the auction, which belongs to the auctioneer, are separately listed and marked in the catalogue.
5. The auctioneer declares he/she ready, to remit the direct lodged complaint of the buyer to consignor.
6. All titles against the auction house because of used objects subjects to a limitation period of one year after hand-over of the object, as long as they are not founded on intentional infringement or legally forced limitation period are statutory. As long as the buyer is a tradesman or freelancer, the guarantee claims are limited to 6 months after the day of the award. Apart from the shortened limitation period are titles, which have their cause of injury in life, body or health.
Process of the auction
7. The catalogue number is relevant for every type of bid. The auctioneer has the right to separate and merge catalogue numbers, offer objects outside the auction or take back.
8. Bids can be declined without reason; this applies especially when a bidder does not know the auctioneer, has no business relationship with him/her, or if the bidder don´t furnish security until the end of the auction. A title of bid acceptance does not exist in case of security furnishment. If a bid is declined, the previous bid is immediately binding. If several persons make the same bid, the award will be given to the first bidder. Exists any disagreements over an award, is the auctioneer allowed to freely favor one specific bidder or call the lot up for sale again. There is no title on the award.
In case of a recall of a lot, the previous bid does not count. If there is an invalid higher bid the previous bid will still count as highest.
9. All bids are counted on the bidders own name and behalf. If a bidder wants to bid for someone else, he/she has to refer the name and address of the person he/she represents before the auction. He/she also needs to refer a letter of attorney, otherwise is he/she bounded.
10. The call of the objects normally starts with the limit price mentioned in the catalogue. In the catalogue are the estimated prices not limit or top price. It is only an indication for the current market value of the object without guarantee form correctness. If no price is mentioned will the call start at the estimated price by the auctioneer. Exception: There are higher pre-bids or a price up to 50% of the limit price is agreed with the consignor. The bidder steps lies in the discretion of the auctioneer. The normal bidder steps are an increase of 10%.
11. Bids can be made personally in the auction room as well as written, by telephone or bid online as long as the auction house uses an allowed platform on the internet.
Written bids needs to be received latest one day before the auction starts and the object must be mentioned with the listed catalogue number and the bidden price (the bidden price is without buyer´s premium and taxes). The written bid orders the auctioneer to bid for him/her. Vagueness goes to the expense of the bidder. If a written bid is unaccounted, there is no need for the auctioneer to inform the bidder. Every written bid is only accounted for by the auctioneer when the sum of the bid is relevant.
With telephone bids represents a telephone operator the bidder and bids in the name of him/her. The telephone bids are seen as firm offers. In the telephone bids is buyer´s premium, taxes or other costs are not included. Telephone bids can be recorded by Auktionhaus Kloss. With application to bid by telephone he/she agrees to the Terms of public auction as amended and recording of the telephone call. The auction house takes no responsibility for the occurrence and the maintenance of the telephone connection or transmission errors.
12. Internet bids can be made as pre-bids before the auction as well as live bids during an auction, which also is sent live on the internet (respecting the current Terms of public auction as amended). Bids that are made online during a live auction are only considered when it is a live auction on the internet. Internet bids are then only allowed when the bidder are approved by Auktionshaus Kloss. Therefore a username, password and an unambiguous assignment of the bid are required. Bids over internet are electronically recorded. Live bids are handled as auction bids in the room.
13. The right of rescission and return of distance contracts are not applied for written, telephone and internet bids.
14. The award is carried out after the tree time call from the auctioneer to the highest bidder. If the limit price is not reached, but is conditional, then is the bidder bounded to his/her bid for four weeks. When a conditional bid is not agreed with the consignor or if the limit price is bid by another bidder, the object can be given to the higher bidder without informing the previous bidder. It is the bidder’s responsibility to inform him/herself of the approval of his/her bid. A conditional bid is also possible, when legal or actual doubt of an object is notified during the auction. If a given bid doesn´t get awarded, guarantees the consignor the bidder only intentionally or by gross fault.
If the auctioneer has overlooked a higher bid or if there are doubt about the award, can he/she repeat an award in favor of a certain bid until the end of the auction, or call the object up for bid again, in these cases is a previous award invalid.
15. The post- auction sale is part of the auction. For post-auction bids is a treaty only established when the auction house approve a bid. The Terms of public auction as amended applies also for sales with private treaties.
16. Award of an object obligates the personal attention of the bidder, immediate acceptance and payment of the sold object. In addition to the award sum does the buyer also pay 23,9% buyer´s premium plus legally taxes from currently 19 % of the buyer´s premium (total amount of 28,44%). From the total net sum including buyer´s premium comes additionally 7% VAT for pictures, graphics, sculptures, collection objects, arts and crafts and photography. Exports to countries outside of EU and companies with information of their USt-Id.-Nr. in other countries are freed from VAT.
17. Absent buyers are bound to take the object immediately after the notice of award against cash payment of the award sum and buyer´s premium including VAT. There is no need for special demand. The property of the auctioned objects is reserved until all requirements of the auctioneer (which dued by the buyer at the point of award) are confirmed.
With the issue of the award go all risks, especially accidental perishing and the occurring degradation over on the buyer. The auction house takes no liability for loss or damage for objects that are not payed or picked up. Exception: With intention or gross negligence. The auction house can give objects, which aren´t picked up, to custody of the warehouse keeper at the risk and cost of the buyer, the buyer will be inform of the custody.
18. Payment can be made in cash with Euro or with EC-card. With an invoice sum of over 500 € is payment with credit card on site possible with a 2,9 % additional legal VAT. Instead of cash payment can also a bank confirmed check be used for payment. Checks are only taken on account of performance. All incurred costs, charges and taxes through bank transfer go to the buyers account. For absent bids counts prejudice the immediate expiration date for payment within 7 days after the day of the invoice, not as to late. After the 7 days occurs the payment delay. The auctioneer have the right to take a 10 € charge for every warning, where the buyer reserves the right to prove that less damage occurred by the auctioneer.
19. Delayed payment has an interesting for default up to 1 percent per month. The buyer reserves the right to prove that less damage occurred by the auctioneer. For delayed payment, the auction house can withdraw from the contract after an appropriate deadline. In case of a withdrawal are all rights of the bidder canceled. In case of a withdrawal has the auction house the right to damage compensation to the amount of the buyer´s premium. Is the object sold in a new auction, guarantees the defaulting buyer that he/she has to pay the lost costs for the auction house. When it is sold for a higher price has the defaulting buyer no claim. The auction house has the right to forbid the defaulting buyer to make further bids.
20. Purchase money and purchase money arrears as well as other services can be claimed and sued by the auctioneer in the name of the consignor.
21. In opposite of the auctioneer can the buyer only count with uncontested or legally established claims. Statutory right of lien of the buyer is excluded, as long as it is not based on the same contractual relationship.
22. The bidder agrees that his/her name, address and purchases are electronically recorded and used by the auction house for purposes of realization and transaction as well as purposes of informing about future auctions and offers.
23. These Terms of public auction as amended regulates all relationships between the buyers and Auktionshaus Kloss. General terms and conditions of the buyer have no importance. Verbal sub-agreement does not persist. Changes in the Terms of public auction as amended have to occur in written form.
24. The contract agreement takes effect under German law. The place of contract fulfillment is Berlin. The place of jurisdiction for disputes and action concerning bills of exchange and check is also Berlin. The international CISG have no usage.
25. You insure that, as long as the auction house, auction participants and bidders don´t say, that the catalogue and the pictured objects from the time of the German third empire only to purposes of clarification of fact, the blocking of unconstitutional attempts, the art or the science, the research or the learning, coverage about processes of the events of time or the history or other similar purposes are auctioned, for example buy (§§ 86, 86a StGB). The auction house and the consignors only give their objects under aforementioned requirements. Objects which content violate against §§ 130 130a and 131 StGB, are excluded by the auction.
26. Should one or more regulations of this Terms of public auction as amended be legally void, stays the rest of the regulations are unaffected. The legally void regulations replaces through an effective regulation to come as close as possible to the economic intent. The corresponding applies, when the contract holds a supplement gap.
Terms & Conditions
1. The employees of the Auktionshaus Kloss shall act as agents of the seller for the sale of the item. All goods remain the property of the seller until payment is received in full. The auctioneer will store the items safely in adequate rooms without charges. On behalf of the client, the auctioneer will insure the goods against burglary, fire, tap water damage and windstorm upon payment of the valuation price less the agreed commission. According to the terms of the agreement, the auctioneer will charge the seller if a third person must store the items. The estimated value equal to the insurance value is considered the limited amount for the claim for indemnity.
2. The seller must ensure holding the right to dispose of the property by providing proof of authority (e.g. purchase certificate) if requested by the employees of the Auktionshaus Kloss. In every case of reasonable doubts regarding the absolute power of disposition, the auctioneer is entitled to terminate the contract without notice if the seller is not able to provide any proof of authority to sell the good. The seller will automatically be charged with all incurred expenses. Furthermore, the claim for damages is invalid.
3. The representation and description of the property in the auction catalogue edited by Auktionshaus Kloss refer precisely to the specified information provided by the seller. The auctioneer is held responsible for deliberate action and/ or gross negligence. The liability of the seller towards the buyer concerns authenticity, origin, age, size and other guaranteed features. The Auktionshaus Kloss is entitled to terminate all contracts between the seller and the auctioneer if indicated details about the item made by the seller appear incorrectly.
4. The Auktionshaus Kloss is authorized to valuate every item for the auction sale. The valuation price of each item is listed in the auction catalogue. The seller shall know that the valuation of art objects as well as antique objects is fraught with uncertainty. The auction house can therefore assume no liability, only in the case of deliberate action and/ or gross negligence.
5. The seller and the auctioneer are entitled to agree in writing that a third person is enabled to prove the authenticity and the state of preservation of the property. The auctioneer is entitled to obtain an expert opinion. According to the terms of the agreement, the seller approves of all necessary measures taken by the expert authorized by the particular association. All costs incurred fall to the seller.
6. The employees of the Auktionshaus Kloss shall act as agents of the seller for the sales of the items. The auctioneer is entitled to hold the auction according to the conditions of the Auktionshaus Kloss (01.01.2011).
7. The seller is authorized to set the hammer price in the signed contract. The limited price is considered a guideline for any bid and/ or direct offer made. The auctioneer is entitled to offer the item for half of the valuation price if the seller names no limits. In case the acceptance of a bid underlies 10% of the limited price, a conditional sale will take place. The auctioneer must not settle the balance. The bidder remains under obligation for four weeks. The auctioneer confirms the acceptance of a bid using dutiful discretion, if the seller named not limited price. The valuation price made by the Auktionshaus Kloss is nonbinding. Gold and silver items refer to the general value of gold and silver. Oriental carpets and other textiles must be chemically treated before sending it to the auction house. The costs fall to the seller.
8. The auctioneer is responsible for the devolution and delivery of the property. The seller relinquishes all claims to the auctioneer. The Auktionshaus Kloss should be under no obligation to account to the seller for sums due from the buyer until payment for the property sold has been made by the buyer to the auction house and the auctioneers will account to the seller within four to six weeks of the later of the auction. The contract includes the exact amount of commission. In addition to the commission, the seller must pay a fee (10€ to 100€ plus VAT) depending on the size of the item for costs on catalogue images as well as advertising. The auction house will email individual images (3€ each) if requested. Images will be sent by email only after the auction house received the payment. The reimbursement of expenses is due even if the seller withdraws from the made offer. Objections against the accounting must be made within two weeks after receiving an invoice. If the conditions of delivery imply no exceptional regulations, the liability of the auction house and its employees refer only to deliberate action and/ or gross negligence.
9. If the property is unsold and the seller refuses to collect its property within three weeks, then the auctioneer is enabled to offer the same property again for 50% of the estimated auction price. If the property remains unsold for 12 month then the auctioneer is entitled to sell or donate the property.
10. If the conditions of the contract contain no exceptional regulations, then the responsibility of the auctioneer regarding the case of deliberate action and/ or gross negligence concerns every employee of the auction house. The Auktionshaus Kloss can be held responsible for negligence in the case of cardinal duty and/ or foreseeable damages made by the auction house.
11. All contracts come under German law. The place of fulfilment is in Berlin. The place of jurisdiction for disputes as well as action on a bill of exchange/ cheque is also in Berlin.