General terms and conditions for the participation in lempertz:projects
(so-called Timed Auction).
1. General information. The following general terms and conditions apply to the participation in so-called timed auctions (hereafter referred to as “lempertz:projects“) carried out by Kunsthaus Lempertz KG, Neumarkt 3, 50667 Cologne (hereafter referred to as “Lempertz”), in cooperation with Venator & Hanstein KG, Cäcilienstr. 48, 50667 Cologne.
Lempertz sells within lempertz:projects as commission agent in its own name on account of its clients (sellers), who remain anonymous.
lempertz:projects is purely a sales auction and is neither a public auction according to § 312 g Abs. 2 Nr. 10 BGB nor a traditional auction according to § 34 b Gewerbeordnung, § 156 BGB. Otherwise, Lempertz's terms and conditions of auction apply accordingly. The application of the distance selling directive is excluded.
2. Submission of bids. Submission of bids. Lempertz reserves the right to approve bidders for the auction and especially the right to make this approval dependent upon successful identification in terms of § 1 para. 3 GWG. For this purpose, the client shall send Lempertz a written registration with a valid identity card to Lempertz:projects prior to its participation. If this does not contain a current registration address, the client will also send Lempertz a proof of address. Legal entities will also additionally send Lempertz a current and valid proof of identity (e.g. an extract from the commercial register) showing the authorized persons.
3. Conclusion of contract. The presentation of an object at lempertz:projects does not constitute a binding offer to conclude a contract of sale.
Lempertz sets a starting price for each item presented within the framework of lempertz:projects as well as a period within which purchase offers for this item can be submitted (hereinafter "offer deadline").
Offer. The submission of a purchase offer by the customer takes place by transmitting a purchase price offer via the corresponding online function. A submitted purchase offer is binding for the customer. A purchase offer submitted by the customer is confirmed immediately by e-mail. Such an e-mail does not constitute a binding acceptance of the offer.
Acceptance. When the offer deadline is concluded or following a termination of the deadline ahead of time by Lempertz, Lempertz accepts the purchase offer of the customer who placed the highest purchase bid within the offer deadline. This concludes a contract of sale for the object in question between Lempertz and the highest bidder, at which point the remaining purchase offers for the object expire.
4. Maximum price. In the framework of lempertz:projects, the customer has the possibility, alongside the submission of a purchase price offer, to also provide the highest price which they would be prepared to pay for the object in question (hereinafter “maximum price). If two customers submit an identical purchase price, then only that which was submitted earlier will be taken into account. The customer who placed the later offer will be informed of this via e-mail.
The maximum price will not be shown to other customers, only the current highest bid is visible.
As long as the customer's maximum price is higher than the current maximum bid of other customers for the object in question, the purchase price offer will, upon submission of further purchase price offers, be raised to such an extent that the customer who submitted the maximum price will remain the highest bidder. The increases of the purchase price offer are carried out automatically at bidding increments of a maximum of 10% of the last purchase price offer.
5. All lots put up for sale may be viewed and inspected prior to the auction. The catalogue specifications and related specifications appearing on the internet, which have both been compiled in good conscience, do not form part of the contractually agreed to conditions. These specifications have been derived from the status of the information available at the time of compiling the catalogue. They do not serve as a guarantee in legal terms and their purpose is purely in the information they provide. The same applies to any other information, either in oral or written form. Certificates or certifications from artists, their estates or experts relevant to each case only form a contractual part of the agreement if they are specifically mentioned in the catalogue text. The state of the item is generally not mentioned in the catalogue. Likewise missing specifications do not constitute an agreement on quality. All items are used goods. All objects are sold in the condition that they are found upon conclusion of the purchase contract.
6. Warranty claims are excluded. In the event of variances from the catalogue descriptions, which result in negation or substantial diminution of value or suitability, and which are reported with due justification within one year after handover, Lempertz nevertheless undertakes to pursue its rights against the seller through the courts; in the event of a successful claim against the seller, Lempertz will reimburse the buyer only the total purchase price paid. Over and above this, Lempertz under takes to reimburse its commission within a given period of three years after the date of the sale if the object in question proves not to be authentic, when the object is returned in unchanged condition.
7. Claims for compensation as the result of a fault or defect in the object auctioned or damage to it or its loss, regardless of the legal grounds, or as the result of variances from the catalogue description or statements made elsewhere due to violation of due diligence according to §§ 41 ff. KGSG are excluded unless Lempertz acted with wilful intent or gross negligence; the liability for bodily injury or damages caused to health or life remains unaffected. In other regards, point 6 applies.
8. Up to a hammer price of € 400,000 a premium of 25 % calculated on the hammer price plus statutory value added tax (VAT) calculated on the premium only is levied. The premium will be reduced to 20 % (plus VAT) on any amount surpassing € 400,000 (margin scheme).
On lots which are characterized by N, an additional 7 % for import tax will be charged.
On lots which are characterized by an R, the buyer shall pay the statutory VAT on the hammer price and the buyer’s premium (regular scheme).
Exports to third (i.e. nonEU) countries will be exempt from VAT, and so will be exports made by companies from other EU member states if they state their VAT identification number. For original works of art, whose authors are either still alive or deceased for less than 70 years (§ 64 UrhG), a charge of 1.8 % on the hammer price will be levied for the droit de suite. The maximum charge is € 12,500. For payments in which amount to EUR 10,000.00 or more, Lempertz is obliged to make a copy of the photo ID of the buyer according to §3 of the German Money Laundry Act (GWG). This applies also to cases in which payments in of EUR 10,000.00 or more are being made for more than one invoice. If a buyer exports an object to a third country personally, the VAT will be refunded, as soon as Lempertz receives the export and import papers. All invoices issued on the day of auction or soon after remain under provision.
9. Successful bidders shall forthwith upon the purchase pay to Lempertz the final price (hammer price plus premium and VAT) in Euro. Bank transfers are to be exclusively in Euros.
10. In the case of payment default, Lempertz will charge 1% interest on the outstanding amount of the gross price per month. If the buyer defaults in payment, Lempertz may at its discretion insist on performance of the purchase contract or, after allowing a period of grace, claim damages instead of performance. In the latter case, Lempertz may determine the amount of the damages by putting the lot or lots up for auction again, in which case the defaulting buyer will bear the amount of any reduction in the proceeds compared with the earlier auction, plus the cost of resale, including the premium.
11. Buyers must take charge of their purchases immediately after the auction. Once a lot has been sold, the auctioneer is liable only for wilful intent or gross negligence. Lots will not, however, be surrendered to buyers until full payment has been received. Without exception, shipment will be at the expense and risk of the buyer. Purchases which are not collected within four weeks after the auction may be stored and insured by Lempertz on behalf of the buyer and at its expense in the premises of a freight agent. If Lempertz stores such items itself, it will charge 1 % of the hammer price for insurance and storage costs.
12. As far as this can be agreed, the place of performance and jurisdiction is Cologne. German law applies; the German law for the protection of cultural goods applies; the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are not applicable. Should any provision herein be wholly or partially ineffective, this will not affect the validity of the remaining provisions. With regard to its auctioneering terms and conditions drawn up in other languages, the German version remains the official one.