Sale Date >

10 May 2013 5pm (4pm UK time)

Venue Address

  • Kurfürstendamm 212
  • Berlin
  • 10719
  • Germany
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  • Tel: +49 3098320222
Delivery Details

Märklin Railroad Private Collection

Venue Address

  • Kurfürstendamm 212
  • Berlin
  • 10719
  • Germany

Sale Date

  • 10 May 2013 5pm (4pm UK time)

Terms and Conditions

Terms and conditions
(as of September 2014)
A. General Terms and Conditions – Auctions
B. General Terms and Conditions – Online Shop
C. Terms and conditions for obtaining a valuation
D. Glossary
– jointly referred to as : Terms and conditions –
of Auctionata Beteiligungs AG,
Kurfürstendamm 212,
10719 Berlin, Germany,
represented by its Board Directors:
Alexander Zacke, Georg Untersalmberger, Jan Thiel, Susanne Zacke and Christof
Schminke
Chairman of the Supervisory Board: Dr. Christian Nagel
Company Registration Number HRB 155814 B ,
Registry Court: Local Court Berlin-Charlottenburg,
Value Added Tax ID No. DE 295683843
This text is only a translation from the German language. In case of doubt, the German version
applies. The contractual language shall be German.
1. Preamble
Auctionata is an auction house which offers high-quality goods on the Internet. They are
auctioned off or offered for direct sale in the Online Shop. All auctions are transmitted in
real time via streaming technology. Auctionata offers second-hand goods from the fields of
art and antiques as well as sculptures, decorative art and design of the 20th century,
jewellery, rugs, memorabilia, collector’s items, oriental artworks, tribal art, textiles, Islamic
art, postcards, paintings, works on paper and graphic prints, numismatics, postage stamps,
silver, porcelain, glass and ceramics, contemporary art and photography, rare wines and
liquors, antique books, autographs, placards, vintage fashion, accessories, musical
instruments, watches, vehicles, coins and many other luxury goods.
Moreover, Auctionata offers valuations of second-hand art items and luxury goods.
Integral parts of this Terms and Conditions shall be the Overview of Fees in their currently valid version
as well as the tabular listing of the increments specified by Auctionata.
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Important:
Please note that this website allows you to purchase goods from Auctionata Beteiligungs AG or Auctionata, Inc. - a wholly owned US subsidiary of Auctionata Beteiligungs AG. Both organizations operate with different Terms and Conditions.
Before any purchase via this website you will have to take notice and have to accept the respective Terms and Conditions which apply for your purchase!
The Terms and Conditions below apply for all purchases of goods at auction or via the online shop in which Auctionata Beteiligungs AG acts as the seller.
For all purchases of goods at auction or via the online shop in which Auctionata, Inc. acts as the seller, these terms and conditions apply.
The transaction details can be determined from information on the lot detail page.
A. General Terms and Conditions – Auctions
1. General provisions
1.1 All offers, purchase agreements, deliveries and services based on and in connection with auctions organized by Auctionata, including through the www.auctionata.com website or any other website operated by Auctionata (hereinafter “auctions”) shall be governed by these General Terms and Conditions.
1.2 In the auctions, Auctionata sells items on consignment, i.e. Auctionata assumes the role of seller for the owner of the items (hereinafter “Consignor”) by selling items in its own name on behalf of the owner (“Commission-based Transaction”). Auctionata holds an official authorization for auctioneering according to Section 34b German Industrial Code (GewO).
1.3 The auctions are public auctions according to Sections 474 Paragraph 2 Sentence 2, 312g Paragraph 2 Nr. 10 German Civil Code (BGB). A right of revocation does not apply for purchase agreements closed with the fall of the hammer.
1.4 Our offerings are intended merely for consumers and business persons who have turned 18 years of age, i.e. only for adults. In the event that the customer only then becomes an adult after turning 18 years of age in the country where he resides, then the customer may only then register when he is considered to be an adult in the country where he resides. The offering and sale of alcohol are directed solely to persons who have reached the age required under law at their residence for the purchase of alcohol. The handover of bought alcohol happens only, if the recipient shows the proof of the age required under law before the handover.
1.5 Auctionata reserves the right to exclude customers from an auction if their residence/delivery address is located in a country in which the goods that are being offered cannot be imported and
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Auctionata has knowledge of this and if doubt exists about the customer’s identity or his creditworthiness.
1.6 Auctionata reserves the right to limit the number of goods which a customer may acquire. Thus, for example, it may be demanded that acquired goods must be paid for before the customer may continue to bid or buy.
1.7 The customer’s general terms and conditions shall not apply, even if Auctionata has not expressly rejected these in individual cases.
1.8 Auctionata may employ third parties as vicarious agents for the purpose of fulfilling the Agreement. The customer hereby consents to this in advance.
1.9 Employees of Auctionata are not allowed to bid at auctions by Auctionata or to buy goods for auctions, which are entrusted to Auctionata (cf. Section 34b Paragraph 6 Number 2 Alternative 2 German Industrial Code (GewO)).
2. Sale by Auction
2.1 Auctions operated by Auctionata are based upon the English auction model. With this auction form, the price is successively increased by the submission of at least one bid above the starting price.
2.2. Auctionata will hold the auction at its own discretion. An auctioneer will conduct the auction for Auctionata in the auction room and is in charge of the proceedings. He or she will conduct the auction, read out the auction announcements (at the beginning of the auction) and accept the winning bid. The auctioneer will accept the winning bid in accordance with his/her duties at his discretion in all cases.
If the auctioneer makes the decision to end the auction, then he shall count off the following phrase to all persons who have entered the virtual auction room “Highest bid going once…, highest bid going twice…., highest bid going thrice…”. Then the current bid price shall be announced by the auctioneer. The auctioneer may only then announce the acceptance of the winning bid if no higher offer has been submitted after the highest bid is repeated three times.
2.3 Auctionata requires consent to these Terms and Conditions and the announcement before the participation in an auction.
3. Auction catalog and viewing
3.1 The items presented in the auction catalog can be viewed by customers for at least two hours at Auctionata’s premises by appointment.
3.2 Goods to be sold at Auction will be presented in an auction catalog (at least two weeks before the Auction). The lot number, estimated value and starting price for each item will be listed here.
3.3 Our customers shall have no entitlement to bid for particular items presented in the auction catalog because the items are presented subject to the proviso that an owner may withdraw his items up until the start of the Auction. Furthermore, Auctionata shall be entitled to withdraw items from the auction before the winning bid is accepted without stating reasons.
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3.4 Auctionata shall be entitled to conduct the Auction in a different order to the order of the lot numbers as stated in the auction catalog. Auctionata shall further be entitled to offer several items shown separately in the auction catalog together as one lot, or to divide a lot containing several items.
4. Participation in an Auction
4.1 As a rule, items can be purchased at auction by participating in the auction in Auctionata’s auction room. The customer may participate in an auction in person through his presence in the Auctionata auction room, (although the number of participants may be limited by Auctionata,) or may be represented at the auction. The customer may also participate in the auction via means of communication such as letter, fax, telephone, email, or his user account on the Auctionata website.
4.2 Online absentee bids, written purchase orders and bids by telephone shall constitute a commissioning of Auctionata by the customer to place bids on his behalf and to enter into a purchase agreement with Auctionata if he places the winning bid. In this respect, the customer authorizes Auctionata to place bids on his behalf and to enter into the purchase agreement resulting from the winning bid. In this respect, Auctionata is granted an exception from the provision of Section 181 of the German Civil Code (BGB) by the customer.
a) The following shall apply to online absentee bids and written purchase orders (together referred to as “purchase orders” or referred to singularly as “purchase order”):
• Auctionata shall remain free to reject requests or to cancel accepted requests up until the winning bid is accepted at its own discretion
• Commissioning shall always be restricted to the item specified in the order form (in accordance with the specified lot number) and the specified maximum purchasing limit (i.e. the maximum price to be bid)
• The maximum purchasing limit must not be lower than the starting price. The maximum purchasing limit will only be exhausted if there is another bidder. If no one else bids on the relevant item, the customer’s bid will automatically be accepted at the starting price. To clarify: The specified maximum purchasing limit relates only to the purchase price excluding the buyer’s premium, contribution to the resale royalty right , shipping and shipping insurance costs and statutory VAT; Auctionata shall charge extra for these in accordance with figure 8.1
• The order form may not be used to communicate other messages to Auctionata going beyond the distinct purchase order. Under no circumstances will Auctionata take messages of this kind noted on purchase orders into account. Auctionata reserves the right to reject the purchase order in such cases
• The customer may cancel the purchase order in writing (fax, letter, email) up to 72 hours before the auction begins without citing reasons. Such cancellation is permissible up to 72 hours before the auction begins. Cancellation later than 72 before the auction begins, or after the auction has begun, is excluded in principle; it may be permitted in individual cases at the discretion of Auctionata, however. In cases of cancellation, Auctionata shall be entitled to charge an administration fee in accordance with the schedule of fees for the Auction for each item specified in the purchase order. The customer reserves the right to provide evidence of lower damages.
• If, despite having submitted a purchase order, the customer wishes to bid in the Auction simultaneously by using his user account or by telephone, for example, he or she must inform Auctionata of this in writing (fax, letter or email) at least 24 hours before the start of the Auction. If the customer does not comply with his announcement, Auctionata shall be entitled
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to carry out the order as stipulated in the order form. If the customer made such notification towards Auctionata, but actually does not perform accordingly meaning does not bid at auction, Auctionata shall be entitled to treat the notification as a cancelation of the purchase order with the related costs.
b) The following shall apply to bids by telephone:
• Auctionata shall remain free to reject requests or to cancel accepted requests up until the winning bid is accepted at its own discretion
• Commissioning shall always be restricted to the item specified in the order form (in accordance with the specified lot number)
• Auctionata will contact the customer by telephone before the items specified in the order form are auctioned using the contact details provided by the customer. If Auctionata is unable to make contact, despite having made three attempts to do so, Auctionata will implement the order concerning the items specified in the order form in the same way as a written purchase order, i.e. Auctionata will place bids up to the starting price. If no one else bids on the relevant item, the customer’s bid will automatically be accepted at the starting price. To clarify: The winning bid at the starting price relates only to the purchase price excluding the buyer’s premium, contribution to the resale royalty right, shipping and shipping insurance costs and statutory VAT; Auctionata shall charge extra for these in accordance with figure 8.1.
• During the telephone conversation, the telephone bidder must state that he or she accepts these general terms and conditions and has acknowledged the auction announcements. The conversation may be recorded by Auctionata for documentation purposes; the caller will be informed of this in advance. Auctionata reserves the right to reject bids placed by telephone or to make the consideration of a bid conditional upon the payment of a deposit or a creditworthiness check
• The customer may cancel the purchase order in writing (fax, letter, email) up to 72 hours before the auction begins without citing reasons. Such cancellation is permissible up to 72 hours before the auction begins. Cancellation later than 72 before the auction begins, or after the auction has begun, is excluded in principle; it may be permitted in individual cases at the discretion of Auctionata, however. In cases of cancellation, Auctionata shall be entitled to charge an administration fee in accordance with the schedule of fees for the Auction for each item specified in the purchase order. The customer reserves the right to provide evidence of lower damages.
4.3 During the auction, bids from customers present in the auction room, but also bids placed via communication means such as letter, fax, telephone, email or the user account on Auctionata’s website will be considered, which may result in a bidding process between the bids placed in the auction room and the written purchase order placed, for example, but also between two written purchase order or a bid placed by telephone or via the user account on Auctionata’s website.
Auctionata reserves the right to do not to accept bids or bids or to make the consideration of a bid dependent upon a down payment and/or the provision of security or credit report information.
4.4 Only verified customers are allowed to participate in an auction.
4.5 In the case that technical problems prevent the continuation of an already running auction the following shall apply:
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• All winning bids that were made before the arising of the technical problems shall remain valid.
• All items from a weekly auction which have not yet been auctioned off shall be auctioned off at a later point in time.
• If a special auction is affected, the auction shall be continued at a later point in time. All persons who were in the auction room at the time that the auction was suspended or have used communication means such as letter, fax, telephone, email or the user account on Auctionata’s website shall be notified of the new time for the auction in writing via email and the time for the new auction shall be published one week in advance on the website www.auctionata.com or any other website operated by Auctionata.
5. User account
5.1 A user account can be set up free of charge and does not oblige the user to participate in an auction. No entitlement to a user account shall exist. A user account allows a customer to submit simultaneously bids in an Auction via the internet. Additionally, it allows a customer to submit online absentee bids via the internet.
5.2 In order to set up a user account, the following data must be provided truthfully by the customer:
• Surname, First Name
• Email address
• Residential address (or deviating shipping address)
• Telephone number
Every change of the above mentioned data has to be reported without request via email, fax, letter or by telephone to Auctionata. The user account for a legal identity has to be registered by its legal representative. The user account is personal which means that only individuals are allowed to create the user account and only the registered person is allowed to use it. The user account is not transferrable.
5.3 The customer must specify a password for his user account. The password must be kept secret and reasonable measures must be taken to prevent non-authorized use.
5.4 If there are indications that a customer is infringing laws, rights of third parties or Auctionata’s General Terms and Conditions, Auctionata shall be entitled to temporarily block the user account or to delete it permanently. The above shall also apply even in the event that Auctionata has another legitimate interest in the deletion of the user account. This shall be the case particularly if fraudulent activities have taken place. In the event that the user account has been blocked or deleted, the respective owner is prohibited from using Auctionata’s services via a user account. In particular, this includes setting up and using a new user account.
5.5 A client may have deleted his user account at any time by asking Auctionata’s Customer Service Division to delete it. The Customer Service Division shall delete the data within three working days.
5.6 During the live auction, the current high bidder will be shown to the auction audience. Visible will be the country of residence, the bidding paddle number and the first name of the user. The first name will be anonymized upon request of the user.
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6. Verification
6.1 Before the participation in an auction, Auctionata verifies the persons who want to participate in it. Auctionata is therefore entitled to verify the identity of a customer before his participation in an auction. Customers are verified, if their identity has been proven towards Auctionata. This is especially the case, if:
1. Customers have concluded a consignment agreement with Auctionata,
2. Customers have already purchased goods in the Online Shop and have paid and accepted the items or have picked up items subject to the presentation of an ID,
3. Customers are personally known to Auctionata,
4. Customers have been verified by means of a copy of an ID, via credit card, via a credit agency or via the provision of security and/or bank information and, as required, also can document their credit reference.
6.2 Auctionata is entitled at any time to make each bidding process dependent upon the provision of security, bank information, information from a credit agency or via the blocking of a certain volume of the credit card limit.
7. Formation of the purchase agreement
7.1 Each bid relating to an item constitutes an offer to enter into a purchase agreement and is therefore legally binding. The purchase agreement concerning an item offered shall be formed and binding when the winning bid is accepted. Placing the winning bid shall oblige the customer to pay the purchase price and to accept the item.
7.2 In order to be effective, bids must correspond with the bidding increments stipulated by Auctionata. The increments specified by Auctionata in the bidding increments table shall form an integral part of these General Terms and Conditions. If a bid does not correspond with the increments specified by Auctionata in the bidding increments table, Auctionata shall be entitled to round down the bid to the next lowest bidding increment for it to be effective.
7.3 The priority principle shall apply when considering bids, i.e. if there are two bids of equal value, the earlier bid will always be considered. If two bids of equal value are placed at the same time, lots will be drawn to decide which bid has priority.
7.4 Auctionata shall be entitled to overturn a winning bid after it has been accepted and to continue the auction of the item if there is doubt as to the identity of the offer or, or other doubt concerning the winning bid. If it is established after the winning bid has been accepted that the purchase agreement with the highest bidder is to be rescinded because he or she is not able to pay for the auctioned item, Auctionata shall be entitled at its own discretion to offer the goods to the underbidder in writing at the last price offered by him or her (email shall suffice). Auctionata shall be bound by the offer for five days. The offer must be accepted in writing by fax, email, letter or by telephone.
7.5 The winning bid will be accepted after the auctioneer has said: “Going once for …, going twice for …, going three times for …, sold!” The auctioneer will state the current purchase price each time. The auctioneer will accept the winning bid if no higher bid has been placed after the highest bid has been announced three times.
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7.6 Auctionata is entitled at its own discretion to reject bids from a bidder during the auction where it has reasons to presume a lack of seriousness, and to ask bidders to pay for the items they have already purchased or to pay a deposit before allowing them to bid on other items.
7.7 The bidder bids and purchases in his own name and for his own account. He or she may be represented by a representative, however, after giving notice in writing (email, fax or letter).
7.8 The items will be offered and auctioned in their condition when the winning bid is accepted.
7.9 Auctionata shall be entitled to accept the winning bid under reserve, if the highest bid on an item is below the item’s minimum selling price agreed on with its consignor (“limit agreement”). In the case of placing the winning bid under reserve, the validity of the purchase agreement (cf. Clause 7.1 of the Terms and Conditions) is dependent on the condition that the consignor approves the sale at hammer price within a period of 8 (eight) days after the auction. If the consignor does not approve the sale at hammer price within the aforementioned period, a valid purchase agreement has not been established. In this case, the highest bidder will be notified. If a limit agreement has been concluded on an item, Auctionata will mark the item on the product page with the text note “limit agreement”.
8. Prices
8.1 On top of the purchase price determined by the winning bid, Auctionata will charge the buyer’s premium, contribution to the resale royalty right (where applicable), shipping and shipping insurance costs and for any additional services statutory VAT. Therefore, bids placed for items during an auction shall always relate to a price excluding the buyer’s premium, contribution to the resale royalty right, shipping and shipping insurance costs and statutory VAT. The same applies to the prices stated in the auction catalog. Further information about the purchase price can be found in the List of Fees for Buyers, whereupon the respective current version shall apply.
8.2 Further information about shipping and shipping insurance costs can be found in the List of Fees for Buyers, whereupon the respective current version shall apply. These costs shall not apply if collection of the goods has been agreed to in writing (email shall suffice) with Auctionata in exceptional cases.
Deliveries to non-EU countries are subject to additional custom duties and import tax. Further Information to custom duties and import tax can for example be found here:
http://www.zoll.de/DE/Home/home_node.html;jsessionid=BA5864B4CA08BA56593274FD649E3105
8.3 The contribution to the resale royalty right refers to the legal obligation for the resale royalty in case of the resale of fine arts and photographs in the art market. The goods affected will be labeled accordingly in the auction catalog. Further information about the contribution to the resale royalty right can be found in the List of Fees for Buyers, whereupon the respective current version shall apply.
9. Taxation
9.1 As a rule, value-added tax will be applied using the “taxation on the margin” scheme pursuant to Section 25a of the Umsatzsteuergesetz (UStG, German Value-Added Tax Act) (margin scheme re Articles 313, 326 or 333 of the EC VAT Directive 2006/112/EC). In other words, the legally mandated rate of VAT will be applied only to the following components of the “purchase price” as defined under Clause 8.1: the buyer’s premium, the resale rights tax, and the costs of shipping/transport insurance.
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“Taxation on the margin” is a special type of tax treatment provided by law for commerce in used merchandise. In this case, the amount of VAT will not be separately itemized on the invoice. Thus, no deduction of input tax will be possible.
9.2 The Buyer may explicitly request that, in deviation from Clause 9.1, VAT be applied to the invoice in the standard manner. The amount of VAT due will then be assessed based on the total invoice amount and separately itemized on the invoice. Deduction of input tax will be possible in this case.
9.3 Taxation on the margin pursuant to Clause 9.1 above may not be applied to goods marked as subject to “standard taxation” in the Online Shop (i.e. goods consigned subject to standard VAT, goods imported from a non-EU country from a tax perspective). In this case, the legally mandated rate of VAT will be included in the invoiced price.
9.4 For deliveries to the rest of the Community Territory of the EU (intra-Community deliveries), businesses may request a VAT-exempt invoice pursuant to Section 6a German Value-Added Tax Act (UStG) by providing their VAT ID number to prove their commercial status.
9.5 For deliveries outside the European Union (export deliveries to a Non-EU Country from a tax perspective), the Buyer may request the issuance of a VAT-exempt invoice in accordance with Section 6 German Value-Added Tax Act (UStG). The purchaser will be responsible for paying tax and customs duties on the delivered goods in accordance with local regulations in the destination country.
10. Warranty; Condition
10.1 The warranty period for consumers will be two years from the date of delivery of the item. For business owners and for purchasers of a used item, the warranty period will be one year from the date of delivery of the item.
10.2 An item’s auction catalogue description will define the characteristics contractually agreed for that item insofar as the catalogue description relates to the item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication or affixed signature. The information provided on the item’s provenance, by contrast, will be expressly excluded from the contractually agreed characteristics. If an announcement made in connection with an auction contains representations regarding an item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication and/or affixed signature and these representations deviate from the corresponding catalogue description, then the announcement will prevail in this regard. If, during an auction, the auctioneer makes oral representations regarding an item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication and/or affixed signature and said representations deviate from the corresponding catalogue description, then the auction catalogue will invariably prevail. If, during an auction, an expert not employed by Auctionata makes oral representations regarding a given item, then these are to be regarded as personal opinions/appraisals of the expert for which Auctionata assumes no liability.
10.3 Since items offered at auction are generally used items, their individual condition will specifically include signs of prior usage and other traces of age. Thus, a given item’s actual and individual state of conservation – as shown and described in the auction catalogue – will be deemed to form part of its contractually agreed characteristics. Insofar as the auction catalogue describes an item as exhibiting blemishes, damage and/or defects which no longer correspond to the normal condition of a used item and which are likely to fundamentally reduce the value of the item, then this information will also be
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deemed part of the contractually agreed characteristics, so that no warranty will be assumed in this regard. The prospective purchaser will have the option to view items before an auction in accordance with Clause 3.1.
10.4 Deviations between an item’s actual shade of color and the one shown in the auction catalogue, insofar as they result from the photographic techniques used (e.g. lighting and/or sharpness of the image) or from the manner in which the item is pictured in the auction catalogue, will be deemed immaterial and will not represent a defect. This will not apply, however, if the deviation in color is due to negligence on the part of Auctionata.
10.5 If an item’s catalogue description explicitly includes a caveat or restriction regarding the reliability of the information provided, then said information will not form part of the agreed characteristics. In this case, the purchaser will purchase the item at his own risk as far as the information in question is concerned. If a catalogue description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, thereby precluding any warranty for defects in this regard. If the catalogue description explicitly describes or designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity”, thereby precluding any warranty in this regard. Inasmuch, neither the starting auction price nor the final hammer price of an item can be used to draw inferences about the actual characteristics or authenticity of that item.
10.6 If a defect is present, i.e. in the event of deviation from the contractually agreed condition of the item, and if documented written proof of the deficiency is presented within the warranty period in accordance with figure 10.1, the following shall apply to the rescinded transaction:
The transaction will be unwound in accordance with the relevant statutory regulations. Accordingly, each Party must first of all return any benefits it has received under the contract. In other words, Auctionata must reimburse the purchaser for the purchase price paid, while the purchaser must return the purchased item(s) to Auctionata. A different procedure will be followed in the event that an item returned by the purchaser has deteriorated or perished in the meantime, whereby deterioration resulting from the item’s proper use will be disregarded. In this case, the debtor must,as a rule, pay compensation for the item’s value in lieu of returning it (cf. Section 346 Paragraph 2 Number 3 German Civil Code (BGB)). The item’s purchase price will be used as the basis for calculating its replacement value. The relevant statutory warranty regulations will also apply in this context; this means, for example, that the purchaser may also demand abatement of the purchase price.
10.7 If, based on the foregoing provisions, a situation arises in which the purchaser is not entitled to any warranty claim, whereas Auctionata is entitled to claims against the consignor, then Auctionata will be obligated to assert its claims against the consignor. If such claims are asserted successfully, the purchaser will be entitled to receive disbursement of the sums recouped up to the amount of the purchase price.
11. The Auctionata Guarantee
11.1 In accordance with the guarantee declaration set forth below in this Clause 11 (“Auctionata Guarantee”), Auctionata guarantees that the descriptions provided in the auction catalogue correspond to the generally recognized state of technical/scientific knowledge publicly available at the time of the item’s purchase with respect to the following agreed characteristics:
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a) the identity of the artist or manufacturer; and
b) the time of creation or manufacture of the item.
If any of the above elements of an item’s catalogue description are provided subject to a caveat, or are identified as having been determined by external experts not employed by Auctionata, or are missing from the catalogue description altogether, then the information in question will not be covered by the Auctionata Guarantee. The Auctionata Guarantee applies only to the information referenced above under a) and b), but not to any other information, e.g. regarding the item’s provenance, technique of fabrication, serial classification, numbering or edition.
11.2 If a catalogue description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, and will thus not be covered by the Auctionata Guarantee in this respect. Likewise, if the catalogue description explicitly describes or designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity” and will thus not be covered by the Auctionata Guarantee in this respect.
11.3 The Auctionata Guarantee will apply for a period of 25 years from the time of handover of the purchased item. After this deadline, all claims under the Auctionata Guarantee will lapse. The purchaser must notify Auctionata in writing about any warranty claim within 6 months of the claim’s discovery, while also providing legitimate grounds for the claim along with reliable, supporting documents or a reputable expert opinion. If he fails to comply with the foregoing, the purchaser will lose recourse to the rights granted under the Auctionata Guarantee.
11.4 In the event of a dispute between Auctionata and the purchaser about whether or not a guarantee event has occurred, an expert arbitrator will decide the dispute. Legal action may not be initiated over a dispute – nor any related claims asserted – until after the expert arbitrator has issued his opinion or, in the case of legal proceedings in accordance with Section 319 German Civil Code (BGB) German Civil Code), until after said proceedings have been concluded in a conclusive, non-appealable manner. Either Party will be entitled to make a written request for the appointment of an expert arbitrator, whereupon the Parties will have 4 weeks to agree on who will serve as arbitrator. If the Parties fail to reach agreement within this time, either Party will be free to make a written demand that the expert arbitrator be appointed by the Bundesverband der Kunstsachverständigen e.V (German Federation of Art Experts) or by some comparable organization. The expert arbitrator must be a publicly appointed and sworn expert in the field of fine art. The arbitrator must be independent and impartial. The arbitration opinion must be prepared in writing. The sole decision-making benchmark to be applied by the arbitrator is the generally recognized state of technical/scientific knowledge in the relevant area of expertise that was publicly available at the time the items under dispute were purchased. The Parties will present their arguments in oral hearings before the arbitrator insofar such hearings are ordered by the arbitrator or requested by both Parties. In all other respects, the arbitrator will define the arbitration procedures to be followed at his discretion. The findings and decisions of the expert arbitrator will be binding on both Parties. A judicial review will take place only in the context of Section 319 German Civil Code (BGB). The arbitration opinion must be issued in writing along with supporting reasoning. This supporting reasoning must include the key assumptions upon which the expert based his evaluation. If the arbitration opinion upholds the purchaser’s side in the dispute, Auctionata will bear the costs and expenditures associated with the arbitrator. If the arbitration opinion does not uphold the purchaser’s side in the dispute, the purchaser will bear the costs and expenditures associated with the arbitrator. If the expert arbitrator is unable to reach a decision (or unable to decide with near certainty) as to whether or not a guarantee event has occurred, then the guarantee event will be deemed inexistent. In
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this case, the costs of the arbitrator will be shared equally between the Parties. In all other respects, each Party will bear any sundry costs that it incurs. Thus, own costs incurred in connection with the arbitration opinion, such as attorney's fees, will be borne by the respective Party.
11.5 If Auctionata acknowledges the warranty event, or if the purchaser prevails in the dispute as a result of the arbitration opinion, Auctionata will be obligated to unwind the purchase transaction in accordance with Section 346 et seqq. German Civil Code (BGB) within a period of 6 months. The Auctionata Guarantee will not entitle the purchaser to assert any further claims, particularly claims for damages or expense reimbursement.
11.6 The Auctionata Guarantee is highly personal in nature; i.e. it is not assignable, either contractually or statutorily, and will not pass to the purchaser’s legal successors (if any) by way of universal succession.
11.7 The Auctionata Guarantee will in no way prejudice the purchaser’s statutory warranty rights in the event of defects. Thus, the rights granted under the Guarantee will exist alongside the warranty rights of the purchaser without in any way limiting the latter. The Auctionata Guarantee will apply to all customers of Auctionata worldwide. The legal guarantor in this context will be Auctionata Beteiligungs AG, Kurfürstendamm 212, 10719 Berlin, Germany.
12. Catalogue descriptions
For purposes of Auctionata’s liability pursuant to Clauses 10 and 11 herein, the following definition of terms will apply with respect to the attribution data provided in the catalogue:
a) "Attributed to": Although Auctionata and/or at least one recognized, external expert believe(s) this to be a work by the artist's own hand, Auctionata – despite its well-founded presumption – cannot definitively warrant that this is the case for specific reasons: e.g. because there is an opposing view in the expert community, or because attribution is not conclusively provable or is rendered difficult due to special circumstances.
b) "Workshop of": Although the work comes from the workshop of the artist, and is thus directly influenced by him, it does not come from the hand of the artist himself, but from another hand.
c) "Circle of": Although the work was directly and clearly influenced by the artist and was created during, or shortly after, the artist's lifetime, it does not come from the hand of the artist himself, but from another hand.
d) "Disciple of": Although the work was influenced by the artist, it was probably created without any direct or indirect contact with the artist himself. Thus, it comes from the hand of a “disciple” – either a contemporary of the artist or someone living in a later period – whose aim was to imitate the artist’s original style.
e) "School": The work cannot be attributed to any particular artist. It can, however, be attributed to a particular artistic milieu, geographical area, and/or epoch (e.g. “Dutch School of the 17th Century”).
f) "Period" or "century": The work cannot be attributed to any particular artist. It can, however, be attributed to the specified historical period or specified century.
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g) "In the style of", “in the fashion of ", "in the manner of", “in the genre of”: Although the work was created in the style of the specified artist or period, it definitely comes from the hand of a different artist and from a different period.
h) "Signed": The term "signed" merely refers to a characteristic of the work and makes no claim as to its purported attribution or authenticity.
i) "After": The work is a copy of a particular work. The original is known and was created by a known hand, whilst the copy comes from a different hand.
13. Liability beside purchase law
Auctionata shall only be liable in cases of intention and gross negligence; the aforementioned shall not apply in the event that express guarantees are assumed (figure 11), or in the event of damages resulting from injury to life, body or health, or in the event of mandatory legal provisions. In the event that significant contractual obligations are breached, or in the event of debtor’s delay or impossibility of payment or performance for which Auctionata is responsible, Auctionata shall be liable for each case of culpable conduct, however. Liability for compensation of indirect damage, and particularly for lost profit, shall only arise in cases of intent or gross negligence on the part of legal representatives, managers or other vicarious agents of Auctionata. The amount of Auctionata’s liability shall be limited to the damage typically foreseeable at the time of entering into the agreement, except in cases of intent or gross negligence on the part of legal representatives, managers or other vicarious agents of Auctionata.
14. Retention of title
The items shall remain the property of the respective Consignor until they are paid for in full. To protect the consignor, the items will not be shipped until payment has been received in full (receipt of payment).
15. Terms of payment
15.1 The purchase price for the items purchased is to be paid in advance. The customer must pay the purchase price immediately upon receipt of the invoice in PDF format. Payment on delivery is excluded. The customer may effect payment by bank transfer, PayPal or credit card. Auctionata shall not charge any fees for this.
15.2 A buyer shall enter into payment default if he has not rendered payment within 10 days after the payment due date and receipt of an invoice; the relevant date is the date that Auctionata receives the payment into its account. Section 286 Paragraph 4 German Civil Code (BGB) remains unaffected. In the event of payment default, the purchase price of Buyers who are consumers shall accrue interest during the payment default period in the amount of 5% points above the respectively valid base lending rate (in accordance with the statutory directives published by the German Central Bank) plus the statutory VAT. For an entrepreneur, the interest during the payment default period shall be 8% points above the base lending rate plus the statutory VAT. The interest shall be calculated per year and charged to the current account.
15.3 If the purchaser delays in making payment, Auctionata may withdraw wholly or partially from the agreement in accordance with the statutory provisions after granting an extension period of seven
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days, and demand damages (Section 325 of the German Civil Code (BGB)), which may include, specifically, storage costs, the buyer’s premium as well as the seller´s premium.
15.4 The purchaser shall be deemed in default with acceptance of the item if he or she does not accept the item after two delivery attempts, or does not collect the item from the deliverer after it is deposited within the statutory period set by the deliverer, or does not collect the item from Auctionata or the deliverer on the agreed date two times in succession.
In the event of a delay in acceptance, Auctionata may wholly or partially withdraw from the agreement in accordance with the statutory provisions. When rescinding the purchase price payment transaction, Auctionata may offset the amount against any entitlement to compensation. This may include, in particular, the expenses incurred through default and through the reduction of the proceeds in the event that the item is auctioned again, and the auction fees associated with this.
When rescinding the purchase price payment transaction, the purchaser must provide his valid bank account details to Auctionata. If he or she fails to comply with this request, the amount will be deposited with the court after 90 days have passed at the purchaser’s expense.
16. Delivery or collection, delivery periods, damage during shipping
16.1 Unless expressly agreed otherwise in writing, Auctionata will ship the sold items to the purchaser and the purchaser will pay the costs of shipping and shipping insurance in accordance with figure 8.2.
16.2 If agreed expressly in writing (by letter, fax or email) in individual cases, the purchaser can also collect the items from Auctionata in Berlin or from the Consignor at its own expense and risk on request and by appointment.
Collection is only possible if the items have been paid for in advance. The day on which the money arrives in Auctionata’s account shall be determinative. Cash payment upon collection is not possible. Upon collection, the purchaser must prove his identity by showing his identity document, which will be copied. If the purchaser sends a representative to collect the item, he or she must announce this by letter, fax or email. In this case, the representative must also prove his identity. The item must be collected at the agreed time. If the purchaser culpably fails to uphold the appointment, default of acceptance in accordance with figure 14.4 shall apply.
16.3 Auctionata will only ship the items when they have been paid for in full (receipt of payment). The delivery period shall be 14 days after receipt of payment in the case of deliveries within the EU, and 21 days for deliveries to countries outside the EU. Delivery periods can be postponed, especially in case of goods which are related to the protection of species and cultural assets, because of official requirements for the ex- and import (for example export and import licenses). Auctionata shall not be liable for delays based on aforementioned circumstances. It is at the expense of a buyer, if a successful delivery to the buyer is not possible due to import regulations. This means that the buyer has to ensure before the conclusion of a purchase agreement with Auctionata that import regulations do not interfere a successful delivery.
16.4 If the purchaser is a business entity, shipping will take place at its own risk; for consumers, the statutory provisions shall apply, i.e. under no circumstances shall the consumer bear the risk of conveyance during shipping.
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16.5 If, immediately upon receipt of the item, it should be discovered that the item has suffered severe damage during shipping, the customer should retain the packaging as evidence, since otherwise proving that the damage occurred during transit is considerably more difficult for Auctionata or may even be impossible. Please contact us immediately in such a case.
17. Exemptions from liability
17.1 Auctionata shall not be liable for the timely and correct submission of orders, bids and messages to Auctionata. Auctionata shall not, therefore, be held liable for the provision of a free telephone line and a functioning fax and Internet connection. Auctionata shall assume no liability whatsoever for the permanent availability of the Auctionata website.
17.2 Auctionata occasionally has to limit the operation of its website in order to perform maintenance work on the system or where this is required in order to perform technical security measures. During these times it is may be that the website of Auctionata is not accessible.
17.3 Auctionata accepts no liability should the website of Auctionata be limited in its functionality or destroyed through force majeure, strike, system malfunction or other external factors. Auctionata shall not be liable for loss or damage incurred through the lack of usability or inaccessibility of the website of Auctionata.
17. 4 Auctionata accepts no liability for the unauthorised access of third persons to person details of Consignors (e.g. by hackers) unless Auctionata wilfully or through gross negligence failed to protect the data against access.
18. Data protection
Auctionata’s privacy statement shall apply.
19. Amendments to the terms and conditions and final provisions
19. 1 Auctionata reserves the right to amend the provisions of these terms and conditions with future effect at any time without citing reasons. Auctionata will announce such amendments on its www.auctionata.com website or by email. The amendments shall be deemed to have been accepted if the customer does not object to them within two weeks of receiving notice, or if he or she makes use of Auctionata’s services again after the agreement has been amended. Auctionata shall present these terms and conditions to every customer before every Auction, so that amendments can be acknowledged before the conclusion of an agreement. If a customer objects to the amendment, Auctionata shall be entitled to terminate the agreement with the customer.
19.2 Third parties may enter into this agreement in place of Auctionata and wholly or partially assume the resulting rights and obligations subject to six weeks’ prior notice. The customer hereby consents to this in advance.
19.3 The place of performance for all of Auctionata’s performance obligations that are derived from the contractual relationships between the contractual parties shall be the commercial residence of Auctionata Beteiligungs AG in Berlin (Germany) if the contractual partner is an business person. The statutory provisions of the place of performance shall apply to consumers.
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19.4 The legal venue for all claims arising from the disputes from the contractual relationships between the contractual parties shall be – insofar as the contractual parties are business persons, legal persons under public law or special foundations under public law – the commercial residence of Auctionata in Berlin (Germany). However, Auctionata may also alternatively take legal action against the contractual partner at his general or any other permissible legal venue. This shall not be valid if mandatory legal directives prescribe another legal venue.
19.5 The law of German Federal Republic shall apply exclusively, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (see also Article 2b CISC regarding auctions) for the contractual agreement and the resulting claims, regardless of the type and against whom they are asserted. This shall also apply to transactions against national borders.
19.6 Should one or more of the provisions of the Terms and Conditions be or become wholly or partly ineffective or should the Terms and Conditions be found to contain omissions, the validity of the remaining provisions shall remain unaffected. The parties undertake, in such cases, to replace the wholly or partly ineffective provision with one which.
19.7 We save the text of the sales contract and send you the ordering information per email Access to the Terms and Conditions is given on the website at any time. Further, a printed version of the Terms and Conditions can be downloaded in PDF format. The ordering information is not accessible via the internet due to security reasons.
B. General Terms and Conditions – Online Shop
1. General provisions
1.1 All offers, purchase agreements, deliveries and services based on orders by our customers through the www.auctionata.com website or any other website operated by Auctionata (hereinafter “Online Shop”) shall be governed by these General Terms and Conditions.
1.2 In the Online Shop, Auctionata sells items on consignment, i.e. Auctionata assumes the role of seller for the owner of the items (hereinafter “Consignor”) by selling items in its own name on behalf of the owner (“Commission-based Transaction”).
1.3 As a general rule, items are purchased using a shopping basket system. Our customers shall have no entitlement to purchase particular items presented in the Online Shop because the items are presented subject to the proviso that an owner may withdraw his items. An owner has the right to withdraw his items until the formation of the purchase agreement via the shopping basket system.
1.4 Our offerings are intended merely for consumers and business persons who have turned 18 years of age, i.e. only for adults. In the event that the customer only then becomes an adult after turning 18 years of age in the country where he resides, then the customer may only then register when he is considered to be an adult in the country where he resides. The offering and sale of alcohol are directed solely to persons who have reached the age required under law at their residence for the purchase of alcohol. The handover of bought alcohol happens only, if the recipient shows the proof of the age required under law before the handover.
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1.5 Auctionata reserves the right to exclude customers from shopping in Online Shop, if their residence/delivery address is located in a country in which the goods that are being offered cannot be imported and Auctionata has knowledge of this and if doubt exists about the customer’s identity or his creditworthiness.
1.6 Auctionata reserves the right to limit the number of goods, which a customer may acquire. Thus, for example, it may be demanded that acquired goods must be paid for before the customer may continue to bid or buy.
1.7 The customer’s general terms and conditions shall not apply, even if Auctionata has not expressly rejected these in individual cases.
1.8 Auctionata may employ third parties as vicarious agents for the purpose of fulfilling the Agreement. The customer hereby consents to this in advance.
1.9 Employees of Auctionata are allowed to buy items in the Online Shop.
2. Formation of the purchase agreement
2.1 As a general rule, items are purchased using a shopping basket system. An ordering via the shopping basket constitutes a binding offer from the customer to enter into a purchase agreement. The purchase agreement shall be formed when Auctionata sends the customer an order confirmation by an automatically send email. If this does not happen, the customer’s offer shall be deemed to have been rejected.
2.2 If Auctionata permits the customer to submit a counter offer (proposed price) for an item, which may be lower than the sales price stated in the online shop, Auctionata will pass this on to the deliverer so that he or she can authorize the sale; no sale can take place without his consent. The customer shall be bound to his offer for five days. If several proposed prices are received, only the highest proposed price will be passed on. If Auctionata receives the Consignor’s consent within the 5-day period, Auctionata will send the customer an order confirmation by email and a purchase agreement shall be formed as a result. At the same time, the purchased item will be labeled as sold in the online shop. If the Consignor does not declare his consent within the 5-day period, no purchase agreement shall be formed. The counter offer (proposed price) shall cease to be valid if a third party purchases the item for the sale price stated in the online shop using the shopping basket system before we have received the Consignor’s consent. In this case, the purchase agreement shall be formed with the purchaser who is willing to pay the full price.
2.3 The purchaser shall receive an invoice and the text of the agreement in PDF format together with the order confirmation by email.
2.4 The purchaser may enter into the purchase agreement in German or in English.
3. Prices
3.1 The sales price of the respective items listed in the Online Shop includes the buyer`s premium, the contribution to the resale royalty right (if applicable) and for any additional services statutory VAT. Auctionata charges additionally to the aforementioned sales price the Transport Costs and Transport
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Insurance Costs (including VAT). Further information about the purchase price can be found in the List of Fees for Buyers, whereupon the respective current version shall apply.
3.2 Further information about shipping and shipping insurance costs can be found in the List of Fees for Buyers, whereupon the respective current version shall apply [direct link]. These costs shall not apply if collection of the goods has been agreed to in writing (email shall suffice) with Auctionata in exceptional cases.
Deliveries to non-EU countries are subject to additional custom duties and import tax. Further Information to custom duties and import tax can for example be found here:
http://www.zoll.de/DE/Home/home_node.html;jsessionid=BA5864B4CA08BA56593274FD649E3105
3.3 The contribution to the resale royalty right refers to the legal obligation for the resale royalty in case of the resale of fine arts and photographs in the art market. The contribution to the resale royalty right is concluded in the sales price. The goods affected will be labeled accordingly in the Online Shop. Further information about the contribution to the resale royalty right can be found in the List of Fees for Buyers, whereupon the respective current version shall apply.
4. Taxation
4.1 As a rule, value-added tax will be applied using the “taxation on the margin” scheme pursuant to Section 25a German Value-Added Tax Act (UStG) (margin scheme re Articles 313, 326 or 333 of the EC VAT Directive 2006/112/EC). In other words, the legally mandated rate of VAT will be applied only to the following components of the “purchase price” as defined under Clause 3.1: the buyer’s premium, the resale rights tax, and the costs of shipping/transport insurance. “Taxation on the margin” is a special type of tax treatment provided by law for commerce in used merchandise. In this case, the amount of VAT will not be separately itemized on the invoice. Thus, no deduction of input tax will be possible.
4.2 The Buyer may explicitly request that, in deviation from Clause 4.1, VAT be applied to the invoice in the standard manner. The amount of VAT due will then be assessed based on the total invoice amount and separately itemized on the invoice. Deduction of input tax will be possible in this case.
4.3 Taxation on the margin pursuant to Clause 4.1 above may not be applied to goods marked as subject to “standard taxation” in the Online Shop (i.e. goods consigned subject to standard VAT, goods imported from a non-EU country from a tax perspective). In this case, the legally mandated rate of VAT will be included in the invoiced price.
4.4 For deliveries to the rest of the Community Territory of the EU (intra-Community deliveries), businesses may request a VAT-exempt invoice pursuant to Section 6a German Value-Added Tax Act (UStG) by providing their VAT ID number to prove their commercial status.
4.5. For deliveries outside the European Union (export deliveries to a Non-EU Country from a tax perspective), the Buyer may request the issuance of a VAT-exempt invoice in accordance with Section 6 German Value-Added Tax Act (UStG). The purchaser will be responsible for paying tax and customs duties on the delivered goods in accordance with local regulations in the destination country.
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5. Revocation Instruction
Right to revoke
You have the right to revoke this contract within 14 days without giving any reason.
The revocation period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.
To exercise the right to revoke, you must inform us (Auctionata Beteiligungs AG, Kurfürstendamm 212, D-10719 Berlin, email: widerruf@auctionata.com, Fax: +49 30 202 39 21 69) of your decision to revoke this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model revocation form, but it is not obligatory.
To meet the revocation deadline, it is sufficient for you to send your communication concerning your exercise of the right to revoke before the revocation period has expired.
If you revoke this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us). We will make the reimbursement without undue delay, and not later than 14 days from the day on which we are informed about your decision to revoke this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your revocation from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.
You will have to bear the direct cost of returning the goods. The cost is estimated at a maximum of approximately 100,00 EUR.
You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
End of revocation instruction
Model revocation form
(If you like to revoke this contract, complete and return this form)
- To Auctionata Beteiligungs AG, Kurfürstendamm 212, D-10719 Berlin, E-Mail: widerruf@auctionata.com, Fax: +49 30 202 39 21 69:
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- I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the provision of the following service [*],
- Ordered on [*]/received on [*],
- Name of consumer(s),
- Address of consumer(s),
- Signature of consumer(s) (only if this form is notified on paper),
- Date
______________________________
[*] Delete as appropriate.
6. Warranty; condition
6.1 The warranty period for consumers will be two years from the date of delivery of the item. For business owners and for purchasers of a used item, the warranty period will be one year from the date of delivery of the item.
6.2 An item’s product description will define the characteristics contractually agreed for that item insofar as the product description relates to the item’s authorship, manufacturer, date of manufacture/creation, technique of fabrication or affixed signature. The information provided on the item’s provenance, by contrast, will be expressly excluded from the contractually agreed characteristics.
6.3 Since items offered in the Online Shop are generally used items, their individual condition will specifically include signs of prior usage and other traces of age. Thus, a given item’s actual and individual state of conservation – as shown and described in the Online Shop – will be deemed to form part of its contractually agreed characteristics. Insofar as the product catalogue describes an item as exhibiting blemishes, damage and/or defects which no longer correspond to the normal condition of a used item and which are likely to fundamentally reduce the value of the item, then this information will also be deemed part of the contractually agreed characteristics, so that no warranty will be assumed in this regard.
6.4 Deviations between an item’s actual shade of color and the one shown on the product page, insofar as they result from the photographic techniques used (e.g. lighting and/or sharpness of the image) or from the manner in which the item is pictured on the product page, will be deemed immaterial and will not represent a defect. This will not apply, however, if the deviation in color is due to negligence on the part of Auctionata.
6.5 If an item’s product description explicitly includes a caveat or restriction regarding the reliability of the information provided, then said information will not form part of the agreed characteristics. In this case, the purchaser will purchase the item at his own risk as far as the information in question is concerned. If a product description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, thereby precluding any warranty for defects in this regard. If the product description explicitly describes or
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designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity”, thereby precluding any warranty in this regard.
6.6 If a defect is present, i.e. in the event of deviation from the contractually agreed condition of the item, and if documented written proof of the deficiency is presented within the warranty period in accordance with figure 6.1, the following shall apply to the rescinded transaction:
The transaction will be unwound in accordance with the relevant statutory regulations. Accordingly, each Party must first of all return any benefits it has received under the contract. In other words, Auctionata must reimburse the purchaser for the purchase price paid, while the purchaser must return the purchased item(s) to Auctionata. A different procedure will be followed in the event that an item returned by the purchaser has deteriorated or perished in the meantime, whereby deterioration resulting from the item’s proper use will be disregarded. In this case, the debtor must,as a rule, pay compensation for the item’s value in lieu of returning it (cf. Section 346 Paragraph 2 Number 3 German Civil Code (BGB)). The item’s purchase price will be used as the basis for calculating its replacement value. The relevant statutory warranty regulations will also apply in this context; this means, for example, that the purchaser may also demand abatement of the purchase price.
10.7 If, based on the foregoing provisions, a situation arises in which the purchaser is not entitled to any warranty claim, whereas Auctionata is entitled to claims against the consignor, then Auctionata will be obligated to assert its claims against the consignor. If such claims are asserted successfully, the purchaser will be entitled to receive disbursement of the sums recouped up to the amount of the purchase price.
7. The Auctionata Guarantee
7.1 In accordance with the guarantee declaration set forth below in this Clause 7 (“Auctionata Guarantee”), Auctionata guarantees that the descriptions provided in the product descriptions correspond to the generally recognized state of technical/scientific knowledge publicly available at the time of the item’s purchase with respect to the following agreed characteristics:
a) the identity of the artist or manufacturer; and
b) the time of creation or manufacture of the item.
If any of the above elements of an item’s product description are provided subject to a caveat, or are identified as having been determined by external experts not employed by Auctionata, or are missing from the product description altogether, then the information in question will not be covered by the Auctionata Guarantee. The Auctionata Guarantee applies only to the information referenced above under a) and b), but not to any other information, e.g. regarding the item’s provenance, technique of fabrication, serial classification, numbering or edition.
7.2 If a product description explicitly refers to an item as a “copy” (e.g. as a “museum copy”), then the item in question will be deemed purchased as a copy and not as an original, and will thus not be covered by the Auctionata Guarantee in this respect. Likewise, if the product description explicitly describes or designates an item as being "of doubtful authenticity", then said item will be deemed purchased not as an original but as an “item of doubtful authenticity” and will thus not be covered by the Auctionata Guarantee in this respect.
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7.3 The Auctionata Guarantee will apply for a period of 25 years from the time of handover of the purchased item. After this deadline, all claims under the Auctionata Guarantee will lapse. The purchaser must notify Auctionata in writing about any warranty claim within 6 months of the claim’s discovery, while also providing legitimate grounds for the claim along with reliable, supporting documents or a reputable expert opinion. If he fails to comply with the foregoing, the purchaser will lose recourse to the rights granted under the Auctionata Guarantee.
7.4 In the event of a dispute between Auctionata and the purchaser about whether or not a guarantee event has occurred, an expert arbitrator will decide the dispute. Legal action may not be initiated over a dispute – nor any related claims asserted – until after the expert arbitrator has issued his opinion or, in the case of legal proceedings in accordance with Section 319 German Civil Code (BGB), until after said proceedings have been concluded in a conclusive, non-appealable manner. Either Party will be entitled to make a written request for the appointment of an expert arbitrator, whereupon the Parties will have 4 weeks to agree on who will serve as arbitrator. If the Parties fail to reach agreement within this time, either Party will be free to make a written demand that the expert arbitrator be appointed by the Bundesverband der Kunstsachverständigen e.V (German Federation of Art Experts) or by some comparable organization. The expert arbitrator must be a publicly appointed and sworn expert in the field of fine art. The arbitrator must be independent and impartial. The arbitration opinion must be prepared in writing. The sole decision-making benchmark to be applied by the arbitrator is the generally recognized state of technical/scientific knowledge in the relevant area of expertise that was publicly available at the time the items under dispute were purchased. The Parties will present their arguments in oral hearings before the arbitrator insofar such hearings are ordered by the arbitrator or requested by both Parties. In all other respects, the arbitrator will define the arbitration procedures to be followed at his discretion. The findings and decisions of the expert arbitrator will be binding on both Parties. A judicial review will take place only in the context of Section 319 German Civil Code (BGB). The arbitration opinion must be issued in writing along with supporting reasoning. This supporting reasoning must include the key assumptions upon which the expert based his evaluation. If the arbitration opinion upholds the purchaser’s side in the dispute, Auctionata will bear the costs and expenditures associated with the arbitrator. If the arbitration opinion does not uphold the purchaser’s side in the dispute, the purchaser will bear the costs and expenditures associated with the arbitrator. If the expert arbitrator is unable to reach a decision (or unable to decide with near certainty) as to whether or not a guarantee event has occurred, then the guarantee event will be deemed inexistent. In this case, the costs of the arbitrator will be shared equally between the Parties. In all other respects, each Party will bear any sundry costs that it incurs. Thus, own costs incurred in connection with the arbitration opinion, such as attorney's fees, will be borne by the respective Party.
7.5 If Auctionata acknowledges the warranty event, or if the purchaser prevails in the dispute as a result of the arbitration opinion, Auctionata will be obligated to unwind the purchase transaction in accordance with Section 346 et seqq. German Civil Code (BGB) within a period of 6 months. The Auctionata Guarantee will not entitle the purchaser to assert any further claims, particularly claims for damages or expense reimbursement.
7.6 The Auctionata Guarantee is highly personal in nature; i.e. it is not assignable, either contractually or statutorily, and will not pass to the purchaser’s legal successors (if any) by way of universal succession.
7.7 The Auctionata Guarantee will in no way prejudice the purchaser’s statutory warranty rights in the event of defects. Thus, the rights granted under the Guarantee will exist alongside the warranty rights of the purchaser without in any way limiting the latter. The Auctionata Guarantee will apply to all
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customers of Auctionata worldwide. The legal guarantor in this context will be Auctionata Beteiligungs AG, Kurfürstendamm 212, 10719 Berlin, Germany.
8. Product descriptions
For purposes of Auctionata’s liability pursuant to Clauses 6 and 7 herein, the following definition of terms will apply with respect to the attribution data provided in the catalogue:
a) "Attributed to": Although Auctionata and/or at least one recognized, external expert believe(s) this to be a work by the artist's own hand, Auctionata – despite its well-founded presumption – cannot definitively warrant that this is the case for specific reasons: e.g. because there is an opposing view in the expert community, or because attribution is not conclusively provable or is rendered difficult due to special circumstances.
b) "Workshop of": Although the work comes from the workshop of the artist, and is thus directly influenced by him, it does not come from the hand of the artist himself, but from another hand.
c) "Circle of": Although the work was directly and clearly influenced by the artist and was created during, or shortly after, the artist's lifetime, it does not come from the hand of the artist himself, but from another hand.
d) "Disciple of": Although the work was influenced by the artist, it was probably created without any direct or indirect contact with the artist himself. Thus, it comes from the hand of a “disciple” – either a contemporary of the artist or someone living in a later period – whose aim was to imitate the artist’s original style.
e) "School": The work cannot be attributed to any particular artist. It can, however, be attributed to a particular artistic milieu, geographical area, and/or epoch (e.g. “Dutch School of the 17th Century”).
f) "Period" or "century": The work cannot be attributed to any particular artist. It can, however, be attributed to the specified historical period or specified century.
g) "In the style of", “in the fashion of ", "in the manner of", “in the genre of”: Although the work was created in the style of the specified artist or period, it definitely comes from the hand of a different artist and from a different period.
h) "Signed": The term "signed" merely refers to a characteristic of the work and makes no claim as to its purported attribution or authenticity.
i) "After": The work is a copy of a particular work. The original is known and was created by a known hand, whilst the copy comes from a different hand.
9. Liability beside purchase law
Auctionata shall only be liable in cases of intention and gross negligence; the aforementioned shall not apply in the event that express guarantees are assumed (Clause 7), or in the event of damages resulting from injury to life, body or health, or in the event of mandatory legal provisions. In the event that significant contractual obligations are breached, or in the event of debtor’s delay or impossibility of payment or performance for which Auctionata is responsible, Auctionata shall be liable for each case of
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culpable conduct, however. Liability for compensation of indirect damage, and particularly for lost profit, shall only arise in cases of intent or gross negligence on the part of legal representatives, managers or other vicarious agents of Auctionata. The amount of Auctionata’s liability shall be limited to the damage typically foreseeable at the time of entering into the agreement, except in cases of intent or gross negligence on the part of legal representatives, managers or other vicarious agents of Auctionata.
10. Retention of title
The items shall remain the property of the respective Consignor until they are paid for in full.
11. Terms of payment
11.1 The purchase price for the items purchased is to be paid according to the customer´s choice in advance or on account. For each order, Auctionata reserves the right to do not offer certain types of payments and to refer to different types of payment. A right to a certain payment shall not exist. In case of payment in advance, the customer must pay the purchase price immediately upon receipt of the invoice in PDF format. In case of payment on account, the purchase price shall be due for payment 21 days after the receipt of the written invoice. Payment on delivery is excluded. The customer may effect payment by bank transfer, PayPal or credit card (the credit card account will be debited on the following day after the ordering). Auctionata shall not charge any fees for this.
11.2 A buyer shall enter into payment default if he has not rendered payment within 10 days after the payment due date and receipt of an invoice; the relevant date is the date that Auctionata receives the payment into its account. Section 286 Paragraph 4 German Civil Code (BGB) remains unaffected. In the event of payment default, the purchase price of Buyers who are consumers shall accrue interest during the payment default period in the amount of 5% points above the respectively valid base lending rate (in accordance with the statutory directives published by the German Central Bank) plus the statutory VAT. For an entrepreneur, the interest during the payment default period shall be 8% points above the base lending rate plus the statutory VAT. The interest shall be calculated per year and charged to the current account.
11.3 If the purchaser delays in making payment, Auctionata may withdraw wholly or partially from the agreement in accordance with the statutory provisions after granting an extension period of seven days, and demand damages (Section 325 of the German Civil Code (BGB)), which may include, specifically, storage costs and the buyer’s premium.
11.4 The purchaser shall be deemed in default with acceptance of the item if he or she does not accept the item after two delivery attempts, or does not collect the item from the deliverer after it is deposited within the statutory period set by the deliverer, or does not collect the item from Auctionata or the deliverer on the agreed date two times in succession.
In the event of a delay in acceptance, Auctionata may wholly or partially withdraw from the agreement in accordance with the statutory provisions. When rescinding the purchase price payment transaction, Auctionata may offset the amount against any entitlement to compensation. This may include, in particular, the expenses incurred through default and through the reduction of the proceeds in the event that the item is auctioned again, and the auction fees associated with this.
When rescinding the purchase price payment transaction, the purchaser must provide his valid bank account details to Auctionata. If he or she fails to comply with this request, the amount will be deposited with the court after 90 days have passed at the purchaser’s expense.
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12. Delivery or collection, delivery periods, damage during shipping
12.1 Unless expressly agreed otherwise in writing, Auctionata will ship the sold items to the purchaser and the purchaser will pay the costs of shipping and shipping insurance in accordance with figure 4.2.
12.2 If agreed expressly in writing (by letter, fax or email) in individual cases, the purchaser can also collect the items from Auctionata in Berlin or from the Consignor at its own expense and risk on request and by appointment.
12.3 At the purchase “cash with order” Auctionata will only ship the items when they have been paid for in full (receipt of payment). The delivery period shall be 14 days after receipt of payment in the case of deliveries within the EU, and 21 days for deliveries to countries outside the EU. Delivery periods can be postponed, especially in case of goods which are related to the protection of species and cultural assets, because of official requirements for the ex- and import (for example export and import licenses). Auctionata shall not be liable for delays based on aforementioned circumstances. It is at the expense of a buyer, if a successful delivery to the buyer is not possible due to import regulations. This means that the buyer has to ensure before the conclusion of a purchase agreement with Auctionata that import regulations do not interfere a successful delivery.
12.4 If the purchaser is a business entity, shipping will take place at its own risk; for consumers, the statutory provisions shall apply, i.e. under no circumstances shall the consumer bear the risk of conveyance during shipping.
12.5 If, immediately upon receipt of the item, it should be discovered that the item has suffered severe damage during shipping, the customer should retain the packaging as evidence, since otherwise proving that the damage occurred during transit is considerably more difficult for Auctionata or may even be impossible. Please contact us immediately in such a case.
13. Exemptions from liability
13.1 Auctionata offers no guarantees that the Online Shop will be permanently available.
13.2 Auctionata occasionally has to limit the operation of its website in order to perform maintenance work on the system or where this is required in order to perform technical security measures. During these times it is may be that the website of Auctionata is not accessible.
13.3 Auctionata accepts no liability should the website of Auctionata be limited in its functionality or destroyed through force majeure, strike, system malfunction or other external factors. Auctionata shall not be liable for loss or damage incurred through the lack of usability or inaccessibility of the website of Auctionata.
13.4 Auctionata accepts no liability for the unauthorised access of third persons to person details of Consignors (e.g. by hackers) unless Auctionata wilfully or through gross negligence failed to protect the data against access.
14. Data protection
Auctionata’s privacy statement shall apply.
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15. Amendments to the terms and conditions and final provisions
15.1 Auctionata reserves the right to amend the provisions of these terms and conditions with future effect at any time without citing reasons. Auctionata will announce such amendments on its www.auctionata.com website or by email. The amendments shall be deemed to have been accepted if the customer does not object to them within two weeks of receiving notice, or if he or she makes use of Auctionata’s services again after the agreement has been amended. Auctionata shall present these terms and conditions to every customer before every auction, so that amendments can be acknowledged before the conclusion of an agreement. If a customer objects to the amendment, Auctionata shall be entitled to terminate the agreement with the customer.
15.2 Third parties may enter into this agreement in place of Auctionata and wholly or partially assume the resulting rights and obligations subject to six weeks’ prior notice. The customer hereby consents to this in advance.
15.3 The place of performance for all of Auctionata’s performance obligations that are derived from the contractual relationships between the contractual parties shall be the commercial residence of Auctionata Beteiligungs AG in Berlin (Germany) if the contractual partner is a business person. The statutory provisions of the place of performance shall apply to consumers.
15.4 The legal venue for all claims arising from the disputes from the contractual relationships between the contractual parties shall be – insofar as the contractual parties are business persons, legal persons under public law or special foundations under public law – the commercial residence of Auctionata in Berlin (Germany). However, Auctionata may also alternatively take legal action against the contractual partner at his general or any other permissible legal venue. This shall not be valid if mandatory legal directives prescribe another legal venue.
15.5 The law of German Federal Republic shall apply exclusively, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (see also Article 2b CISC regarding auctions) for the contractual agreement and the resulting claims, regardless of the type and against whom they are asserted. This shall also apply to transactions against national borders.
15.6 Should one or more of the provisions of the Terms and Conditions be or become wholly or partly ineffective or should the Terms and Conditions be found to contain omissions, the validity of the remaining provisions shall remain unaffected. The parties undertake, in such cases, to replace the wholly or partly ineffective provision with one which is effective and whose economic purpose most closely reflects that of the ineffective provision.
15.7 We save the text of the sales contract and send you the ordering information per email Access to the Terms and Conditions is given on the website at any time. Further, a printed version of the Terms and Conditions can be downloaded in PDF format. The ordering information is not accessible via the internet due to security reasons.
C. Terms and conditions for obtaining a valuation
1. General provisions
The following provisions shall apply to every valuation request, free valuation, valuation in return for remuneration and other act/service in connection with a valuation through the www.auctionata.com
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website (hereinafter “Website”). Auctionata will treat every valuation request with the utmost discretion. Auctionata shall be entitled to make use of the services of third parties for contractual fulfillment.
2. Conclusion of the agreement; number of free valuations
2.1 A free valuation can be requested using a form on the website or by sending an email to schaetzung@auctionata.com. If the form on the website is used, the customer can choose between “Valuation with photos” and “Valuation without photos”. Before submitting the valuation request, in both cases the customer must enter a brief description and the customer’s contact details, and must agree to these terms and conditions and the privacy statement.
2.2 Once the valuation request has been received, the customer will receive an email in which Auctionata confirms or rejects the request for a valuation or several valuations. If Auctionata accepts the order, an agreement has been formed concerning the preparation of a valuation free of charge. Auctionata reserves the right to reject requests for a valuation, however; under no circumstances shall Auctionata be obliged to accept a request.
2.3 Customers can have a maximum of five items valued free of charge within 12 months. From the sixth item, the customer will receive an offer for a valuation in return for remuneration by email from Auctionata. The interested party must accept this offer by fax, email or letter. Auctionata shall be free to offer individual customers more than five valuations free of charge.
2.4 The valuation shall be free of charge from the sixth item if the valued items are presented to Auctionata for sale by way of a commission-based transaction between the customer and Auctionata within 12 months of the date of valuation. In this case, the costs of each valuation in return for remuneration will be refunded to the customer.
2.5 Submitting a valuation request or entering into an agreement concerning the preparation of a valuation free of charge shall not create a contractual obligation for the customer to enter into a subsequent commission-based transaction with Auctionata; the aforesaid shall also apply in cases of valuation in return for remuneration.
3. Information and photos for the valuation
As a general rule, the experts will prepare the valuations on the basis of the information and photos submitted by the customer. In the event that Auctionata requires additional information and/or additional photos in order to make a valuation, Auctionata will contact the customer and request the information and/or photos. If the customer rejects Auctionata’s request, Auctionata shall be entitled to reject the valuation request. In the event that Auctionata considers it necessary to inspect the item, Auctionata will contact the customer to arrange an inspection or to arrange for the item to be sent to Auctionata. If the customer does not consent to an inspection being carried out by Auctionata, Auctionata shall be entitled to reject the valuation request.
4. Valuation number, status query and notification of the valuation
4.1 Auctionata will allocate a valuation number to each valuation request. In the event of a free of charge valuation, the customer will be sent this number by email together with the order confirmation. In the event of a valuation in return for remuneration, the customer will receive the valuation number in the email containing the offer to conclude an agreement. He or she can use this valuation number to
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query the status of the valuation by replying to the email. The customer will then receive notification of the status of the valuation request by email from Auctionata.
4.2 Finally, the customer will receive a link to the completed valuation on Auctionata’s website. When the customer has received the valuation, he or she can decide whether he or she wishes to sell the item through Auctionata (“commission-based transaction”). No right to enter into a commission-based transaction shall exist, however.
5. Object of service and warranty
5.1 A valuation prepared by Auctionata will always include a determined estimation value and brief details of the item (e.g. date, material, size, artist etc.). The Auctionata experts will always make valuations to the best of their knowledge and on the basis of current scientific knowledge. Unless it has been expressly agreed otherwise in writing (email is sufficient) in individual cases and a direct inspection has taken place, the valuations prepared for customers shall always constitute so-called “remote valuations”. This means that the Auctionata experts have prepared the catalog description “remotely”, i.e. without having inspected the items directly. It follows from this that the valuation constitutes a conditional and provisional arrangement until Auctionata conducts a final direct valuation of the items, and that Auctionata does not, therefore, supply any information about the condition free from any doubt.
5.2 For this reason, every item will be inspected again closely by the Auctionata experts in the event of delivery for sale in the online shop or by Auction. This inspection may lead to a subsequent alteration of the previously determined provisional estimation value. The Consignor will, of course, be notified of this as soon as possible.
5.3 We therefore wish to expressly inform you that the content of a valuation based on a remote valuation is used by the customer at its own risk. Customers should not, therefore, base any far-reaching decisions such as the making of a gift, sale to a third party or similar on the valuation. Auctionata shall assume no warranty for the valuation service(s) provided. Achieving direct or indirect economic success is not the object of the service provided by Auctionata.
6. Remuneration, Maturity and Terms of payment
6.1 The remuneration for obtaining fee-based valuations depends on the current Overview of Fees. The amount of remuneration depends on whether a “remote valuation” or a valuation through direct inspection is commissioned.
6.2 The remuneration for the fee-based valuation is to be paid in advance. The customer must pay the remuneration immediately upon receipt of the invoice. Payment on delivery is excluded. The customer may effect payment by bank transfer, PayPal or credit card. Auctionata shall not charge any fees for this.
6.3 A customer shall enter into payment default if he has not rendered payment within 10 days after the payment due date and receipt of an invoice; the relevant date is the date that Auctionata receives the payment into its account. Section 286 Paragraph 4 German Civil Code (BGB) remains unaffected. In the event of payment default, the purchase price of customers who are consumers shall accrue interest during the payment default period in the amount of 5% points above the respectively valid base lending rate (in accordance with the statutory directives published by the German Central Bank) plus the statutory VAT. For an entrepreneur, the interest during the payment default period shall be 8% points
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above the base lending rate plus the statutory VAT. The interest shall be calculated per year and charged to the current account.
7. Liability
Except in cases of intent or gross negligence, liability on the part of Auctionata shall be excluded. This shall also apply in cases of slightly negligent breaches of duty by legal representatives or vicarious agents unless the case involves the culpable violation of material contractual obligations. If there is no intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for damages resulting from injury to life, body or heath, and liability in accordance with the German law on product liability (ProdHaftG) shall not be affected hereby.
8. Revocation Instruction
Right to revoke
You have the right to revoke this contract within 14 days without giving any reason.
The revocation period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right to revoke, you must inform us (Auctionata Beteiligungs AG, Kurfürstendamm 212, D-10719 Berlin, email: widerruf@auctionata.com, Fax: +49 30 202 39 21 69) of your decision to revoke this contract by a clear statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model revocation form, but it is not obligatory.
To meet the revocation deadline, it is sufficient for you to send your communication concerning your exercise of the right to revoke before the revocation period has expired.
If you revoke this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).
We will make the reimbursement without undue delay, and not later than 14 days from the day on which we are informed about your decision to revoke this contract.
We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
If you requested to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated us your cancellation from this contract, in comparison with the full coverage of the contract
End of revocation instruction
Model revocation form
(If you like to revoke this contract, complete and return this form)
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- To Auctionata Beteiligungs AG, Kurfürstendamm 212, D-10719 Berlin, E-Mail: widerruf@auctionata.com, Fax: +49 30 202 39 21 69:
- I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the provision of the following service [*],
- Ordered on [*]/received on [*],
- Name of consumer(s),
- Address of consumer(s),
- Signature of consumer(s) (only if this form is notified on paper),
- Date
______________________________
[*] Delete as appropriate.
9. Termination
The agreement concerning the preparation of free of charge valuations may be terminated by either party in writing (including by email) at any time without giving reasons. In the case of valuations in return for remuneration, the customer may terminate the agreement without giving reasons at any time until the valuation is complete. In this case, Auctionata shall be entitled to demand the agreed remuneration for the services provided with regard to the valuation(s) not yet complete.
10. Data protection
Auctionata’s privacy statement shall apply.
11. Amendments to the terms and conditions and final provisions
11.1 Auctionata reserves the right to amend the provisions of these terms and conditions with future effect at any time without citing reasons. Auctionata will announce such amendments on its www.auctionata.com website or by email. The amendments shall be deemed to have been accepted if the customer does not object to them within two weeks of receiving notice, or if he or she makes use of Auctionata’s services again after the agreement has been amended. Auctionata shall present these terms and conditions to every customer before every Auction, so that amendments can be acknowledged before the conclusion of an agreement. If a customer objects to the amendment, Auctionata shall be entitled to terminate the agreement with the customer.
11.2 Third parties may enter into this agreement in place of Auctionata and wholly or partially assume the resulting rights and obligations subject to six weeks’ prior notice. The customer hereby consents to this in advance.
11.3 The place of performance for all of Auctionata’s performance obligations that are derived from the contractual relationships between the contractual parties shall be the commercial residence of
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Auctionata Beteiligungs AG in Berlin (Germany) if the contractual partner is an business person. The statutory provisions of the place of performance shall apply to consumers.
11.4 The legal venue for all claims arising from the disputes from the contractual relationships between the contractual parties shall be – insofar as the contractual parties are business persons, legal persons under public law or special foundations under public law – the commercial residence of Auctionata in Berlin (Germany). However, Auctionata may also alternatively take legal action against the contractual partner at his general or any other permissible legal venue. This shall not be valid if mandatory legal directives prescribe another legal venue.
11.5 The law of German Federal Republic shall apply exclusively for the contractual agreement and the resulting claims, regardless of the type and against whom they are asserted. This shall also apply to transactions against national borders.
11.6 Should one or more of the provisions of the Terms and Conditions be or become wholly or partly ineffective or should the Terms and Conditions be found to contain omissions, the validity of the remaining provisions shall remain unaffected. The parties undertake, in such cases, to replace the wholly or partly ineffective provision with one which is effective and whose economic purpose most closely reflects that of the ineffective provision.
D. Glossary
(as of January 2012)
For better comprehension, some terms are defined here in advance which can be found in these Terms and Conditions, in the Privacy Policy, in the Consignment Agreement and in other places. The aforementioned regulations shall always take precedence over the following definitions.
Consumer: The consumer refers to a natural person who purchases the goods and services for his own purposes.
Business Person/Company: The business person is a natural or legal person or a partnership which is authorised to undertake legal dealings which/who is acting in the exercising of his/its commercial or independent professional capacity when concluding a business deal.
Verification: Verification means that Auctionata will examine whether a registered person is actually the person whose identity has been given. For the verification, several options are available which are listed in detail in the Business Terms and Conditions.
Consignor: The contractual partner delivers used items to Auctionata for auction or sale in the Online Shop. The consignor shall remain the owner of the items until transfer of ownership is made to the buyer. A consignment agreement is concluded.
Supplying: The surrendering of the items to Auctionata for sale. The contractual agreement concluded between
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the consignor and Auctionata is called the Consignor Agreement. It involves a commission-based transaction.
Auction: Auctionata regularly holds auctions on its business premises whereby the goods displayed in the online catalogue are publicly auctioned. The auction is broadcast live via streaming technology on the Internet. Thus, it is possible to personally participate in the public auction live via the Internet by entering the virtual auction room. Thus, it is also possible for bidders to also submit bids by telephone during the auction. Moreover, written purchase orders can be issued to Auctionata and indeed by fax, letter or email and up to one hour prior to the start of the auction.
Auctioneer: The auctioneer is considered to be the person who conducts the auction, announces the items for bidding and declares the acceptance of the winning bids (knock down). The auctioneer is considered to be the master of the proceedings. Auctionata works only with auctioneers who are certified in Austria or Germany.
Fall of Hammer or Knock Down: Upon acceptance of the winning bid, namely when the auctioneer hits his gavel on the table (knock down), the purchasing agreement shall be considered to have been concluded. The price obtained in this manner shall be considered to be the hammer price.
Hammer Price: This is the price which the highest bidder offers in order to receive the acceptance of the winning bid, in other words to acquire the goods. The hammer price does not contain the buyer´s premium and additional ancillary costs.
Bidder: A bidder is a person who submits a bid (regardless of whether it is in writing, via the Internet or by telephone) during an auction or an Internet auction. In cases of doubt, it must always be assumed that a bidder is bidding in his own name.
Highest Bidder: The highest bidder is the person who submits the final bid at an auction which is knocked down by the auctioneer.
Low Bidder: A person who has submitted a bid during an auction directly before the winning bid was issued and who was ultimately outbid by the highest bidder.
Account: Each bidder requires an account in order to be able to participate in the bidding process in the virtual auction room. As the holder of an Auctionata account, one can log in with a password and must upload a profile photo.
Profile Photo: The photograph which must be uploaded when an account is set up may depict the person holding the account or also a motif which is appropriate to the account holder. Profile photos may not violate third-party rights.
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Purchasing from the Online Shop: Auctionata shall display goods in the Online Shop which may be purchased immediately at fixed prices. In some cases, customers themselves may recommend a price. The consignor reserves the right to accept or reject this counter offer. Until a price is accepted, the article will remain in the Online Shop and may thus be acquired by a third party at an official sales price.
Catalogue Descriptions: These are the binding descriptions of the goods which are auctioned off or sold. As an exception, obvious typing errors shall be considered to be non-binding.
Written Auction Announcements: Written auction announcements are statements issued by the auction house which can be reviewed in written form before the beginning of an auction and are read aloud by the auctioneer. They carry greater weight than the catalogue descriptions because they may possibly contain new information. Before entering the auction room, the written auction announcements must be approved. They will be read aloud to persons bidding by telephone. Bidders who have already submitted bids before the written auction announcements were available for review and who had no opportunity to receive such information shall be contacted by telephone by the auction house before the auction begins and asked whether they want to keep their bid. If they do not wish to do so, it is possible to withdraw the bid upon a free-of-charge basis.
Written Absentee Bids: Each prospective purchaser is at liberty to submit written purchase orders for the acquisition of items at auctions. These written bids shall be taken into consideration by the respective auctioneer during the auction and must contain at least a starting price and a purchasing limit. Purchase orders must be received in writing by Auctionata by no later than one hour before the auction begins. Purchase orders which are received later may only then be taken into consideration after the auction is over. The prospective buyer may choose whether the purchase order is implemented by a broker or by an auctioneer.
Purchasing Limit: With regards to a purchase order, a maximum amount must be stated at which the bidder is prepared to acquire the goods. The purchasing limit must be at least the amount of the starting price and will only be exhausted if there is another bidder.
Broker: The broker is an employee of Auctionata. He shall render bids for customers who bid by telephone. Likewise, upon the respective prospective buyer’s request, the broker shall forward purchase orders from the written bidders to the auctioneer during the auction.
Bids by Telephone: Each prospective buyer shall be at liberty to notify Auctionata in writing that he would like to bid by telephone during the auction. Auctionata shall call the prospective buyer at the telephone number he designates and make it possible for him to participate in the auction by telephone. The conversation shall be conducted by a broker.
Representative: Each prospective buyer shall be at liberty to commission a person who is not affiliated with Auctionata
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to bid in his name during an Auction. Insofar as the contractual relationship between the representative and the prospective buyer is not already known to Auctionata, then the contractual relationship must be documented in writing by fax or mail.
Notary: A notary shall be called in if at least two bids are received of the same amount and at the same time and lots are drawn to decide who has the winning bid. Furthermore, it is the notary’s responsibility to review written purchase orders in advance.
Presenter: The presenter presents the offered item to the auction’s audience and reads aloud the catalogue descriptions. In the event that there are deviations between the presenter’s oral presentation and the catalogue descriptions or the auction’s written announcement, then the written catalogue descriptions shall take precedence. These written catalogue descriptions shall, in turn, be preceded by the auction’s written announcement.
Estimated Value: A valuation is made of the items to be auctioned determines the so-called estimated value. This represents an amount in money which, based upon the professional opinion of our experts, should be obtained during the auction assuming a sufficient number of bidders.
Starting Price: That is the amount at which the auction will begin.
Fixed Price: That is the gross purchase price which was agreed for a purchase in the Online Shop. It contains the premium and the applicable VAT. It does not contain the shipping and insurance costs. As a rule, the items are offered for the estimated value in the Online Shop.
Sales Proceeds: In the event that an auction is held, the sales proceeds comprise the hammer price less all the fees to be paid by the consignor. In the case of a sale of goods in the Online Shop, the proceeds comprise the fixed price less the premium which will be retained by Auctionata and all the fees to be paid by the consignor.
Counter Offer: Customers may be make the recommendation to the consignor to purchase goods from Auctionata‘s Online Shop at a lower fixed price. A contractual agreement shall only then be realised when the consignor has approved the offer. The customer shall be bound to his counter offer for seven days. If a third party acquires the goods at the fixed price during this timeframe, the customer’s counter offer shall cease to be valid and the purchasing agreement with the third party shall be realised.
Contribution to the Resale Royalty Right: Due to the legal obligation for the resale royalty according to Sec. 26 German Copyright Law (UrhG) applies, that Auctionata remits the resale royalty because of her membership in the AV Kunst for the Consignor. Through this the Consignor gets relieved from his obligation to pay the resale royalty. Auctionata charges the lump-sum contribution according to the membership in the AV Kunst pro rata as a part of the sales price towards the buyer. Auctionata will hold the charged amounts in escrow and properly remit them to the AV Kunst.
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Shipping Insurance: Auctionata shall purchase shipping insurance for the shipment of all goods. In the event that an insurance claim is filed, the buyer shall be credited with the actual payments made and paid out from the Insurance Agreement. The buyer may also demand that the claims against Auctionata‘s insurance provider be assigned to him and assert these claims himself.
Overview of Fees: The fees incurred during the implementation of the business relationship between Auctionata on the one hand and the consignors and the buyers on the other hand shall be regulated respectively in a binding Overview of Fees with an Overview of Fees for Consignors and an Overview of Fees for Buyers.
Premium: The premium is considered to be that fee specified on the Overview of Fees for Buyers which is added to the hammer price during an auction. Furthermore, it concerns each fee which is contained in the price when goods are purchased from the Online shop.
Sales Proceeds: In the event that an auction is held, the sales proceeds comprise the hammer price less all the fees to be paid by the consignor. In the case of a sale of goods in the Online Shop, the proceeds comprise the fixed price less the premium which will be retained by Auctionata and all the fees to be paid by the consignor.
English Auction: With this auction form, the price is successively increased by the submission of at least one bid above the starting price. The starting price is set by Auctionata subject to the consignor’s approval and, as a rule, is substantially lower than the estimated value in order to create an incentive for bidders. Bids which do not correspond to the increments specified by the bidding increments table shall be rounded down to the next lower increment. The tabular list of the increments specified by Auctionata constitutes an integral component of these Business Terms and Conditions.
Valuation: The value of an item which is offered by Auctionata shall be estimated by experts commissioned by Auctionata. Auctionata offers to valuate five items per person and year upon a free-of-charge basis. Beginning with the 6th item, the valuation shall remain free of charge if the valuated items are, subject to Auctionata’s approval, made available to Auctionata for sale within one year’s time after the date the valuation was made.
Taxation of the Margin: The purchase price shall be subject to differential taxation for buyers with their commercial residence within the EU. The taxation of the margin concerns a special form of taxation which is intended for the trading of used items for which it is not possible to deduct the input tax.
Standard Taxation: If the standard taxation (in German language: “Regelbesteuerung”: “RB”) applies, then VAT shall also become payable on the purchase price of the goods and shall be billed. If an artwork is labelled with the term “Regelbesteuerung” or the abbreviation “RB” in the online catalogue, then the sale shall be subject to standard taxation.

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    • Berlin
    • n/a
    • 14055
    • Germany
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    Märklin Railroad Private Collection

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