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1.
Consignment.
Falk
Auctions (hereinafter referred to as the „Auctioneer“ ) shall accept
only those items
for commissioned auction sale which are entirely at the disposal of the
Consignor
or his/her agent. The Auctioneer is, however, not obliged to verify
such a
statement of fact and may therefore assume the satisfaction of this
prerequisite and thus that the items handed over to the Auctioneer to
be
auctioned are their unencumbered property. The auction shall be
performed on
behalf and account of the Consignor signing the sales order.
Furthermore, the Auctioneer
assumes that the items consigned are used objects which may be slightly
damaged. The state of newly restored and faultless items is to be
confirmed in
writing at the time of consignment. The Auctioneer assumes no
responsibility
for the frames of pictures and graphics delivered. The storage of the
objects
is at the risk of the Consignor respectively his/her agent.
Restorations,
repairs, revitalizations and similar measures pertaining to delivered
objects
shall be, at the discretion of the Auctioneer, at the expense of the
consigning
party, unless otherwise agreed upon by both parties in writing.
2.
Deferment.
As a general
rule, items consigned prior to the acceptance deadline will be
auctioned in the
course of the immediately following auction. The Auctioneer is
entitled,
however, to defer items which were already accepted to a later auction,
transpiring subsequent to the immediately following auction. In such
cases, he shall
punctually inform the Consignor as to such a deferment.
3.
Revocation.
If the Consignor revokes the
order, either in
part or in its entirety, the Consignor shall bear all of the
Auctioneer’s
expenses and costs as incurred by such a revocation as of the date of
consignment.
4.
Catalogues and Illustrations.
For each
auction, one or more catalogues shall be
published and edited with expertise, based on the information provided
by the Consignor
(see Paragraph 5 as follows). The Auctioneer may at his/her discretion
add any supplementary
information of a biographic and/or bibliographic nature and an
appraisal and
may state the sales estimate. Sales estimates are not binding, however,
and no
rights or claims may be derived from such sales estimates. The
Auctioneer shall
charge a processing fee amounting to CHF 30 (thirty Swiss Francs) per
item for each
catalogue entry. In case of larger collections and entire estates, an
appropriate flat-rate shall be agreed upon by the Consignor and the
Auctioneer.
Unless
otherwise stated in the sales order, the Consignor
entrusts the Auctioneer with the decision as to the illustrations of
the items,
their layout and their format. As a matter of principle, the size of
the
illustrations is based upon the sales value of the item. Additionally,
each of
the objects illustrated in the catalogue can be published on the
internet for a
fee of CHF 20 (twenty Swiss Francs) per item. Objects which are
depicted on the
front cover of the catalogue are also prominently placed in the
advertisements
and in the worldwide distributed preliminary announcements. Any
contributions
to the expenses which might have to be borne by the Consignor are
listed on the
sheet of tariffs which forms an integral part of the terms herein. Any
color
negatives shall remain in the archives of the Auctioneer and are at
his/her
disposal for any further use.
5.
Consignor’s Warranty.
The
description of the item in the catalogue is
based on the Consignor’s information, in particular as to the author,
origin,
state, completeness, age and value. Any claims arising from such
statements
against the Auctioneer will be referred to the Consignor by the
Auctioneer. In
case of a dispute, the Auctioneer is entitled to hand the item back to
the Consignor
and may claim reimbursement of / compensation for any money paid out
and
advances made as well as Consignor and Purchaser commissions and any
further
damages incurred as a result of such a dispute. If the sale is
cancelled for
any reason, the commission shall nevertheless be due in its entirety.
6.
Limitation.
The
limitation shall be fixed in writing at the
time of consignment. Items may be consigned “BEST”, “LIMITLESS” or with
a
“RESERVE” (minimum hammer price).
BEST limits amount to approximately ½ (one-half) to 2/3
(two-thirds) of the
estimate. Limits always include the commission and insurance premium
(Paragraph
16) as well as any additional service charges (Paragraph 17). In the
absence of
any limits, or if „BEST“ or „LIMITLESS“ have been stated in the sales
order,
the Auctioneer is entitled at his/her discretion to either adjudicate
the item
or to buy in the item, if the Auctioneer deems the bids presented at
the
auction to be insufficient. The decision taken shall be binding for the
Consignor.
If the Consignor has explicitly stated a reserve, he/she shall have to
pay a
contribution to the expenses of 3% of the minimum price, but a minimum
of CHF
50 (fifty Swiss Francs) per item plus any extra charges (Paragraphs 17
and 18),
if that minimum price has not been bid and the item remains unsold. The
items
subject to such an agreement shall be clearly marked on the sales
order. No
limits may be stated for items below an estimated value of CHF 200 (two
hundred
Swiss Francs) and for unsold items of a previous auction which are
reoffered
for sale.
7.
Pre-sale Viewing and
Publicity.
Prior to
the auction, the items to be auctioned
shall be publicly exhibited in the salesrooms. The dates of the
pre-sale
viewing and auction shall be published in the print media, via mailings
of
preliminary announcements and the distribution of the auction
catalogues.
8. Bids
and Adjudication.
Whenever
possible, the auction is performed
according to the sequence indicated in the catalogue as well as in the
auction
program and in adherence to any limits stated. The item shall be
adjudicated to
the highest Bidder upon his/her verbal or written bid according to the
terms of
the auction. The adjudication phrase “going, going“, gone” will
consequentially
be used for each lot called up, irrespective of any bids for that lot.
The Consignor
shall therefore be unable to determine whether a particular consigned
item was
sold or bought in.
9.
Record.
The
course of the auction shall be recorded with
details as to the sale or non-sale as well as the actual hammer price.
After
the auction, the Consignor shall receive a statement with a list of the
auction
results. In case of a discrepancy, the record shall be binding.
10.
Cross
The
Auctioneer is herewith explicitly authorized to
act as a bidding competitor in order to purchase any of the items.
11.
Follow-up
Unless
otherwise stated by the Consignor, the Auctioneer
is entitled to sell items which were not sold at the auction in the
course of a
follow-up sale, at the limit agreed upon or the price called up.
12.
Transfer of Title.
The lot
consigned shall remain the Consignor’s
property until full payment by the Purchaser has been effected. In case
of the default
of payment by the Purchaser, the Consignor is required to hold the lot
at the Auctioneer’s
disposal up to the 90th (ninetieth) day subsequent to the auction.
13.
Settlement and Payment.
As a
matter of principle, settlement and payment
will be concluded within a period of
(six to eight) weeks subsequent to the
auction, if all the
payments, charges and fees have been received, unless any other
deadlines for
payment have been proposed by the bidder and approved of by the
Consignor. In
all cases, the amount due shall be payable to the Consignor mentioned
in the
sales order and may not be assigned to any third party. Any objection
to the
written settlement is to be made within 10 (ten) days immediately
following the
receipt. Otherwise, the settlement will be deemed as approved.
14.
Retention and Return in
Case of Purchaser’s Default of Payment.
Following
the auction, the Auctioneer is entitled
to return any items as unsold for which the Purchaser has not made any
payment
within 90 (ninety) days. The Auctioneer is, however, authorized to act
as a
collecting agent on behalf of the Consignor, and the Auctioneer may
retain the
items concerned until the closure of the collection proceedings. If
unsold
items are returned, any advanced payments or accruing expenses are to
be
refunded.
The
Auctioneer insures the items against burglary, theft
as well as damages by fire and water. The insurance premium amounts to
1% (one
percent) of the sales estimate. If no insurance is desired by the
Consignor,
the Consignor shall be liable and shall confirm his/her deferral of
insurance
and shall accordingly assume his/her liability explicitly in the
agreement.
16.
Commission.
The
Auctioneer shall receive a commission from the Consignor
on any lot sold. The commission includes neither the insurance premium
nor the catalogue
/internet
entry.
The commission rates per hammer price,
insurance premium and catalogue entry excluded, are as follows:
a) 25% (excl. VAT) for items of up to CHF
5,000.00
b) 20% (excl. VAT) for items of more than
CHF
5,001.00, - 50,000.--
c) 18.5% (excl. VAT) for items of more than CHF
50,001.00,
This commission applies to professional as well as private sellers. No
commission will be payable if items fail to reach the limit agreed upon
or if
the bids presented at the auction are deemed as insufficient (Paragraph
6). The
insurance premium, the fee for the catalogue and/or internet entry and
other
object-based costs, however, shall nevertheless be payable by the
Consignor.
17.
Additional Services.
Any
additional services and services provided in
advance like restorations, repairs, passe-partouts, expertise, shipment
from
the Consignor to the Auctioneer, custom duties, import duties, etc., as
well as
contributions to the illustration expenses are to be paid by the
Consignor
separately. Unframed graphic arts which are to be bid as separate
numbers have
to be consigned with passe-partouts, otherwise the Auctioneer shall
supply such
passe-partouts and impose a fee for each of them to be payable by the
Consignor.
Shipment costs of the items to be auctioned on the Auctioneer’s
premises, as
well as for any returns of unsold items, are to be borne by the
Consignor, and
shipment / return shipment shall occur at his/her own risk.
18.
Value-added Tax and
Duties under Public Law.
During
no stage of the sales procedure is the Auctioneer
the owner of the items consigned to him/her. Any taxes, including
value-added
tax on the hammer price, are to be borne by the Consignor, if
applicable. The
value-added tax on commission and services to be paid by the Consignor,
which
was in fact paid by the Auctioneer, shall be subtracted from the
proceeds of
the sale.
19.
Value-added Tax of
Items from Abroad.
Consignments
from abroad shall either be fully
declared at the customs and subjected to the appropriate duties or,
alternately, the authorities shall issue a transient import permit for
such an
item. If items are exempted from duties, there will be no costs for the
time
being, but if they are sold, the Auctioneer will settle any duties with
the
authorities in charge at the Consignor’s expenses. The hammer price is
subject
to VAT. Unsold items shall be re-exported. Any consignments from abroad
shall
to be discussed with the Auctioneer in advance.
20.
Collection of Unsold
Items.
The collection
of unsold items has to be concluded within 4 (four) weeks after the
settlement
was delivered. Auctioned items which are not collected within the time
specified above shall be stored at a fee of CHF 2 (two Swiss Francs)
per day
and per item. The risks and dangers of such storage shall be borne by
the Consignor.
Failure to collect unsold items within three months after the
settlement was
sent, shall be deemed as unconditional release of all the rights to
those items
and they shall become the Auctioneer’s property without any further
notification any without any compensation.
21.
Failure to Hold Auction
due to Force Majeure.
If the
auction cannot be held due to fortuitous events,
the Auctioneer assumes no liability to compensate the party ordering
the sale
for any routine services rendered. Any reclaims for additional
services, if
those additional services have been rendered or are binding for the
Auctioneer,
remain in force.
22.
Liability of the Auctioneer.
Any
demands for compensation as made against the Auctioneer
due to default, impossibility to perform, positive breach of contract,
negligence at breach of contract or unauthorized actions are
inadmissible,
unless the damage has been caused by malicious or grossly negligent
actions.
23.
Acknowledgement of the
Contract and Governing Law and Place of Jurisdiction.