Australian GST
§ 1 General
1. These Terms of Auction are displayed in the auction room; they are published in each auction catalogue, and also on the Internet, if appropriate. By placing an order or making a bid, the buyer expressly acknowledges these Terms of Auction and the validity thereof for the auction.
2. The auction, which is public as contem-plated in §§ 383 III, 474 I 2 BGB, is prepared, held and handled by Karl & Faber Kunst-auktionen GmbH (referred to hereinafter as "Karl & Faber"). As a matter of principle, Karl & Faber auctions the works of art as a commission agent, acting in its own name and for the account of the unnamed party supplying the object. An Auctioneer ap-pointed by Karl & Faber holds the auction in the name and for the account of Karl & Faber. Claims pertaining to the auction shall be directed to Karl & Faber, and not to the Auctioneer. Objects which are the property of Karl & Faber (so-called Own Goods) are specially marked with "‡".
§ 2 Bidding and Auction
1. All bidders shall communicate their name and address in a timely manner before the auction. Karl & Faber reserves the right to request bidders unknown to the company to present a valid iden-tity card, passport, or similar identifying documentation. Bidder num-bers shall be issued, if appropriate. If a bidder wants to make bids in the name of a third party, then he must give notice to this effect before the auction begins, stating the name and ad-dress of the party he is representing and submitting a written proxy. The sales contract shall otherwise, upon the fall of the hammer, be brought about with the bidder.
2. The estimate prices specified in the catalogue of Karl & Faber (where appropriate, the upper and lower estimated value) are stated in Euros. They serve as a guide for the market value of the object being auctioned. The starting price is fixed by the Auc-tioneer; bids shall be placed at the Auctioneer's discretion, each price shall, as a rule, be 10% above the preceding bid. Karl & Faber reserves the right to combine or to split catalogue numbers, or - if there is special reason for doing so - to call them in an order other than that given in the catalogue or to withdraw them.
3. Bids may also be made in writing or by telephone. Bidding over the Internet is only permissible if done via the online services provided by Karl & Faber. Bids made in writing or by telephone shall be only admitted if the bidder has submitted an application for the admission of such bids to Karl & Faber at least 24 hours before commencement of the auction. The request must stipulate the work of art, stating the catalogue number and the catalogue name. If there is any doubt, the cata-logue number shall be decisive; any uncertainties shall be for the detriment of the bidder. Telephone bids shall be accepted only as of an estimated price of € 1,000. With the requesting of per-mission to make bids by telephone, the bidder agrees to telephone calls being recorded. Karl & Faber shall not assume any guarantee for the handling of written or internet based bids or bids made by tele-phone. Karl & Faber shall, in particular, not be liable for errors in transmission or for the establishment and for maintaining telephone or internet connections. This shall not apply if Karl & Faber is responsible for a mistake due to intent or gross negligence.
4. The hammer shall fall, after a bid has been called three times, if no higher bid is made. If several persons make the same bid and no higher bid is made after it has been called three times, then the case shall be decided by drawing lots. A bid may be accepted subject to reservation in individual cases, which the Auctioneer shall point out in each case. Any such acceptance of a bid shall only take effect if Karl & Faber confirms the bid in writing by presenting a statement of account within 4 weeks of the date of the auction; the bidder shall be bound by his bid for the duration of this period of time. Karl & Faber may withdraw its acceptance of a bid during an auction and call for new bids for the work of art at the same auction, if a higher bid made in good time has been overlooked by mistake and the relevant bidder has objected to such immediately, or if there is doubt of any other nature regarding the acceptance of a bid. If Karl & Faber exercises this right, then the acceptance of the original bid shall cease to be effective. Karl & Faber shall be entitled to refuse the acceptance of a bid or to reject a bid if there is special reason on hand for doing so. A special reason shall be on hand in particular, if a bidder is unknown to Karl & Faber and has not provided security at the latest, by the time the auction begins. If a bid is rejected, then the preceding bid shall remain in effect. The ac-cep-tance of a bid shall oblige the bidder to acceptance and payment.
5. Written bids shall be deemed bids already made at the auction. If Karl & Faber receives several written bids to the same amount for one and the same work of art, then the bid received first shall be accepted, if no higher bid has been submitted or is made. Karl & Faber shall only avail itself of each written bid up to the amount which is necessary in order to outbid an other bid which has been made. A written bid, which is to be submitted using the form sheet provided for such purpose, must be signed by the bidder and stipulate the hammer price (without premium, fee for droit de suite, and value added tax due) offered for the work of art.
§ 3 Payment
1. The purchase price consists of the hammer price plus premium. In addition, a fee that is not liable to VAT and amounts to 1.8% of the hammer price shall be charged - where due - to compensate for droit de suite pursuant to Copyright Act § 26.
2. As regards VAT, sales are made subject to the gross margin scheme or subject to regular taxation, depending on the consignor's specifications to be provided in a timely fashion before the invoice is issued.
a) Artworks subject to regular taxation are marked "R" after the catalogue number. In these cases, the buyer shall be charged a premium for each individual object as follows: 25% on a hammer price up to and including 100,000 Euro; 23% on the amount exceeding a hammer price of over 100,000 Euro and up to and including 500,000 Euro; and 19% on the amount exceeding 500,000 Euro. If the buyer is entitled to deduct input tax and has his place of residence within the EU, then statutory value added tax at a rate of 19% shall be levied on the hammer price and the premium and shall be indicated separately.
b) If Turnover Tax Act § 25a applies (gross margin scheme), the premium payable by buyers not entitled to deduct input tax is increased by 19% turnover tax, which is only charged on the premium and is not indicated separately. The percentage rates applying according to § 3 Item 2 a) above are then 29.75%, 27.37% and 21.42%. An "N" behind the catalogue number indicates that the work of art originates from a country outside of the EU. For such objects, the advanced import tax will be charged at a rate of 7 % of the hammer price in addition to the premium.
3. The rates of turnover tax given above and the objects on which it is incurred, comply with the current state of legislation and the current practice applied for financial accounting. Changes may therefore arise in this respect, which will then be passed on to the buyer. If buyers resident outside the EU take the work of art they have bought by auction with them to countries outside the EU by themselves, they must provide security amounting to the statutory value added tax. This will be refunded if the buyer submits the export- and purchase certificate issued by the German customs authorities to Karl & Faber within one month of receiving the work of art. (Import) sales tax and customs due abroad are in any event payable by the buyer. Invoices issued during or immediately after an auction are issued subject to review.
4. Karl & Faber shall, in as far as the buyer is committed by these Terms of Auction or by legal prescription to reimburse costs and/ or interest, be entitled to liquidate such in addition to the am-ounts as stipulated in Item § 3, Ziff. 1, 2 a,b, 3. The purchase price shall fall due for payment upon the fall of the hammer. Default of payment shall commence two weeks after a bid has been accepted, also in the case of absent buyers, at the earliest, however, one week after the date of in-voice. The purchase price shall, upon the occurrence of default of payment and notwithstanding any further claims for damages, bear monthly interest at a rate of 1 % per commenced month. Four weeks after the occurrence of default of payment, Karl & Faber shall be entitled to disclose the name and the address of the buyer to the Consignor.
5. The buyer may only offset such claims with respect to Karl & Faber, which are undisputed or have been finally determined by a court of law.
6. Non-cash payments shall be accepted as conditional payment. If payments are effected in foreign currencies, then any exchange rate losses shall be borne by the buyer. All taxes, costs and fees for non-cash payments (including the bank charges char-ged to Karl & Faber) shall be borne by the buyer. Karl & Faber is under no obligation to hand over the work of art which has been bought at an auction until all the amounts owed by the buyer have been paid in full.
§ 4 Collection and Transportation; Passing of Risk
1. The buyer shall collect his acquisition without delay, or at the latest, two weeks after having paid his liabilities in full amount; he shall, after such time, be in default even if no reminder is conveyed. As of this date, or in any event as of the time when the work of art is handed over to the buyer, the risk of accidental destruction or of accidental deterioration of the work of art shall pass on to the buyer.
2. Karl & Faber shall, notwithstanding the provisions of § 4 Item 1 above, store the work of art and insure it (at its purchase price) for a period of one month as of the date of the auction. Thereafter, Karl & Faber shall be entitled but not obliged to store the work of art at an art forwarding agency and to have it insured in the name and for the account of the buyer. If the buyer wishes to have the transportation of the work of art carried out, then he shall notify Karl & Faber thereof in writing. Karl&Faber shall organize suitable means of transportation to transfer the work of art to the buyer, and also appropriate insurance at the latter's expense and - insofar at the buyer is acting as an entrepreneur - at the latter's risk. Karl & Faber may request an adequate advance payment for such purpose.
§ 5 Passing of Title, Consequences of Withdrawal on Default of Payment
1. The ownership to the acquired work of art shall only pass on to the buyer after the complete payment of all amounts owed to Karl & Faber.
2. If the buyer is in default of payment, then Karl & Faber may rescind the contract after having granted an additional period of respite; if such right is exercised, then all the rights of the buyer in respect of the work of art bought by auction shall ex-pire and become void. Karl & Faber shall in such case be entitled to claim compensation of damages from the buyer in the amount of lost remuneration for the work of art (seller's commission and buyer's premium), and any costs incurred for catalogue illustrations. The buyer shall, in addition, be liable for transportation-, storage- and insurance costs until the work of art is returned or - as Karl & Faber may select - is put up for renewed auction. If the work of art is sold at the next auction or at the auction following next thereupon, then the buyer shall furthermore also be liable for any shortfall in proceeds. He shall not be entitled to any surplus in proceeds. Karl&Faber shall have the right to exclude the buyer from making further bids at the auction.
§ 6 Preliminary Viewing, Catalogue Details, Liability of the Auction House
1. All the works of art put up for auction may be inspected and viewed in the context of the preliminary viewing. They are altogether used, and the condition they are in, particularly their state of preservation, corresponds with their age and provenance. Objections to this condition shall only be referred to in the catalogue if, in the opinion of Karl & Faber, they sub-stantially impair the overall visual impression of the work of art. The actual condition of the work of art at the time of the fall of the hammer shall, how-ever, in all cases be the agreed quality as defined by statutory regulations, cf. § 6 Item 2.
2. All the details given in the catalogue or in a corresponding Inter-net presentation are merely expressions of opinion made in ac-cordance with best of knowledge and belief. These details do not constitute a legally binding confirmatory commitment regarding quality and nature, nor any such guarantee or an agreement on quality and characteristics. The same applies for the illustrations in the catalogue; these illustrations serve for the purpose of giving interested customers an impression of the work of art; they are not part of an agreement regarding quality and nature and do not constitute an integral part of a guarantee or an integral part of an agreement on quality and characteristics. Karl&Faber reserves the right to correct catalogue details regarding the works of art to be sold by auction before the auction. Such correction may be made by way of a written notice displayed at the place where the auction is held, or it may be given verbally by the Auctioneer immediately before the work of art is sold by auction. The corrected details shall, in any such case, apply in lieu of the description in the catalogue. All claims against Karl & Faber shall be excluded with and by these provisions, particularly all claims for da-mage compensation due to defects of quality and of title, as well as for other reasons [loss/ damage]. This shall not apply, in as far as such claims are based on intentional or grossly negligent actions of Karl & Faber [in-cluding its vicarious agents], or if they are based on the in-fringement or breach of essential contractual duties, or if they concern damages due to the injury of life, body or health.
3. Karl & Faber undertakes, upon the timely request of the buyer (cf. § 6 Item 4), to assert the rights and claims provided for under the internal relationship with the Consignor against such Consignor - also before court if necessary - if the buyer has proven that the details given in the catalogue regarding the origination and the technique of the work of art bought at the auction are in-correct and were also not in agreement with the recognized opinion of experts on the date of the auction. If claims are successfully asserted against the Consignor, then Karl & Faber shall refund the purchase price to the buyer if there are no third-party rights on hand to the work of art, and if the work of art is re-turned in un-changed condition at the registered headquarters of Karl & Faber.
4. Any and all claims asserted against Karl & Faber shall be-come statute-barred one year after the work of art has been handed over to the buyer. This shall not apply for the claims regulated by the provisions stipulated in § 6 Item 2., last sentence; these shall become statute-barred within the periods as provided for by law.
§ 7 Post-Auction Sale
These Terms of Auction shall also apply mutatis mutandis for the subsequent off-hand sale of works of art (so-called After- or Post- Auction Sale) on the open market. Karl & Faber may, for such sales, particularly impose and charge the considerations and allocations regulated in § 3. For this off-hand sale, which is part of the auction, the Distance Selling Regulations according to §§ 312 b) et seqq. BGB does not apply.
§ 8 Final Provisions
The laws of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on the International Sale of Goods (CISG) shall not apply. Munich shall be the place of performance and venue, insofar as the same may be admissibly agreed. If one or several provisions of these Terms of Auction should be or become invalid, then the validity of the remaining other provisions shall not affected thereof. -These Terms of Auc-tion shall govern all relations between the buyer and Karl & Faber. General terms and conditions of business of the buyer shall not apply. No verbal ancillary agreements have been concluded. Amendments to these Terms of Auction are to be made in writing; this shall also apply for the relinquishment and waiver of this writing requirement. If the Conditions of Sale are avaiable in several languages, the German version shall always prevail.
