Table of contents
- Scope of application
- customer account / conclusion of contract / submission of bids
- Right of revocation
- Prices and shipping costs
- Perms of delivery and payment
- retention of title / set-off / right of retention
- Availability of the online platform
- Alternative dispute resolution
1. Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to the use of the services provided by Arttrade Sperling GmbH, Liesker Weg 30, 03119 Welzow (hereinafter referred to as “Arttrade Sperling”).
1.2 On our online portal we operate an online shop and offer so-called
Online Auctions. The latter are sales actions, which neither represent an auction according to § 34 b GewO, § 156 BGB nor a publicly accessible auction according to § 312g Abs. 2 Nr. 10 BGB. Within the scope of the online portal, we rather offer goods, in particular works of art, for sale in our own name, but for the account of third parties (on the basis of a commission contract between us and the clients). The clients shall remain unnamed.
These General Terms and Conditions apply exclusively to sales via the online portal and not to classical auctions which we conduct. This also applies expressly to post-auction sales.
2. customer account / conclusion of contract / submission of bids
2.1 The previous registration of a customer account is necessary for the purchase in our Artshop and/or for the delivery of bids in the context of the on-line auction. When entering data required for registration, you are responsible for the truthful and complete provision of this data. The data entered will be transmitted by clicking on the “Register” button. We reserve the right to accept or reject the registration request at our own discretion. There is no claim to the creation of a customer account. The registration and thus the activation of the customer account will be confirmed to you by e-mail. You can delete the customer account at any time. In this case we will keep your data only as long and to the extent necessary for the fulfilment of a contract. Each customer, in the sense of a natural person, may maintain only one customer account at a time.
2.2 Access to the customer account is granted by entering a user name and the personal password chosen by you. You are obliged to treat this access data confidentially and not to make it accessible to unauthorised third parties. If you have indications that an unauthorized third party may have gained knowledge of the current access data, you must notify us immediately in text form.
2.3 The presentation of an object in our online portal does not constitute a binding offer to conclude a sales contract.
2.4 For each item presented via the online portal as part of an online auction, we shall set a starting price and a deadline within which purchase offers for the item can be submitted (hereinafter referred to as the “Offer Period”). The submission of a purchase offer by the customer takes place by transmitting a purchase price offer via the corresponding function on the online portal. A submitted purchase offer is binding for the customer. We will immediately confirm the receipt of a purchase offer made by you via our online portal by e-mail. Such an e-mail does not constitute a binding acceptance of the offer, unless the confirmation of receipt is accompanied by a declaration of acceptance. After expiry of the offer period or in the event of premature termination of this period by us, we accept the purchase offer of the customer from whom we received the highest legally effective purchase price bid within the offer period, so that a contract is then concluded between us and the highest bidder for the acquisition of the item in question. With the effective conclusion of the purchase contract, the purchase offers made by other customers for this item shall lapse.
2.5 When submitting a purchase price bid within the scope of the online auction, you have the option of specifying the purchase price that you would be prepared to pay as the purchase price for the item in question at the most (hereinafter “maximum price”). If you and another customer enter an identical maximum price, only the previous bid received in our systems will be taken into account. If your offer is later in time, we will inform you of this. This maximum price will not be displayed to other customers. Within the framework of the online portal, only the current highest bid is always visible. As long as the maximum price you have placed is higher than the current highest bid for the item, your purchase price bid will automatically be increased in the bidding steps specified in the bidding table if other customers place purchase price bids, always to the extent necessary to ensure that you remain the highest bidder.
2.6 In connection with an item presented on the online portal as part of the online auction, we may offer the possibility of immediate purchase at a fixed price specified by us. In this case, you may submit a purchase offer at this fixed price, with the consequence that a purchase contract for the item is concluded through our acceptance before the end of the offer period. In this case, the offer period ends prematurely. The possibility of immediate purchase at the fixed price exists – at our option – only as long as either no purchase price bid has been submitted or until a minimum purchase price bid expressly specified by us has been submitted.
2.7 In the event that – for whatever reason – a purchase contract between us and a buyer is not executed, we reserve the right, at our discretion, to offer the item in question to other customers who have submitted a lower purchase price bid at a fixed price.
3. Right of revocation
3.1 In principle, consumers are entitled to a right of withdrawal.
3.2 If you as a consumer make use of your right of revocation according to section 3.1, you have to bear the regular costs of the return.
3.3 Further information on the right of revocation can be found in the revocation instructions at the end of our General Terms and Conditions.
4. Prices and shipping costs
4.1 All prices quoted in our online shop are gross prices including statutory VAT and do not include shipping costs and a resale right fee. The amount of the resale right fee is regulated in Section 4.4. All price quotations in the context of our online auction as well as the purchase price bids submitted by you in this context in the context of the online auction are to be understood plus shipping costs incurred and a surcharge and, if applicable, VAT. (standard taxation). The amount of the surcharge is regulated in Section 4.3. The amount of the resale right fee is regulated in Section 4.4.
4.2 The shipping costs are stated in our price quotations in our online portal. The purchase price including sales tax and any shipping costs and resale right fee as well as the premium in the case of an online auction shall also be stated in the invoice sent to you by us.
4.3 When purchasing within the framework of an online auction, the buyer must pay a premium of 29 % on the purchase price for the first € 200,000.00 and 25 % on the amounts exceeding this in addition to the purchase price. This already includes the statutory value added tax, which is not shown, however, due to difference taxation according to § 25a UStG. In the case of objects that are noted as normally taxed, a premium of 25% is levied on the surcharge on the first € 200,000 and on the amounts exceeding this by 21%. The statutory turnover tax is levied on the sum of the surcharge and the premium.
4.4 The seller of the object is obliged to pay a statutory resale right fee on the proceeds from the sale of all original works of fine art and photography in accordance with § 26 (1) UrhG (German Copyright Act), of which the customer bears a pro rata share in the form of a flat-rate allocation of:
– 1.5 % on a hammer price of up to € 200.000
– 0.5 % for the hammer price in excess of € 200,001 to € 350,000 and
– 0.25 % for another hammer price from € 350,001 to € 500,000 and
– 0.125% for the higher hammer price up to five million; a maximum of € 6,250.
provided that the authors have not died 70 years before the end of the sale.
4.5 If we fulfil your order according to clause 5.1 by partial deliveries, you will only incur shipping costs for the first partial delivery. If the partial deliveries are made at your request, we will charge shipping costs for each partial delivery.
4.6 If you effectively revoke your contractual declaration in accordance with Clause 3, you may, under the statutory conditions, reimburse the costs already paid for shipment to you (Hinsendekosten).
5. Terms of delivery and payment
5.1 We are entitled to make partial deliveries as far as this is reasonable for you.
5.2 The object of purchase shall only be delivered to you after receipt of the complete purchase price including shipping costs. The delivery period shall be five (5) working days, unless otherwise agreed. It begins – subject to the provision in Section 5.4 – with the conclusion of the contract and full payment of the purchase price. Alternatively, you may collect the object of purchase from our business premises by appointment. The collection request must be clarified to us immediately after the conclusion of the purchase contract. We may refuse collection if this is to take place later than 14 days after the conclusion of the purchase contract or – in the case of clause 5.4 – later than 14 days after receipt of payment of the purchase price.
5.3 If you have not acquired the object of purchase as a consumer (i.e. within the scope of your commercial or self-employed professional activity), the following shall apply: As soon as the object of purchase has been handed over to the transport company or its representative or has left our business premises for dispatch purposes, you shall bear the transport risk, i.e. the risk of damage to or loss of the object of purchase during dispatch.
If you are a consumer and have commissioned the transport company to dispatch the goods yourself, without us having named this transport company to you beforehand, the transport risk shall also pass to you when the object of purchase is handed over to the transport company or its representative. In all other cases, the transfer of risk shall not take place until the object of purchase has come into your possession.
5.4 The purchase price and the shipping costs are to be paid within two weeks of receipt of our invoice at the latest. You can transfer the purchase price and the shipping costs to our account specified in the online portal as soon as you have received an invoice from us.
5.4.1 The customer shall be informed of the payment options for the object offered on the seller’s online platform.
5.4.2 If prepayment by bank transfer has been agreed, payment is due immediately after conclusion of the contract, unless the parties have agreed a later due date.
5.5 You shall not be entitled to set off any of our claims unless your counterclaims have been finally determined by a court of law or are undisputed. You are also entitled to offset against our claims if you make a notice of defects or assert counterclaims from the same purchase contract.
5.6 The assertion of rights of retention by you is excluded; insofar as you are not an entrepreneur pursuant to § 14 BGB, however, this only applies if your counterclaim does not arise from the same purchase contract.
7. retention of title / set-off / right of retention
6.1 The delivered goods shall remain our property until the purchase price has been paid in full. In the event that you have sold this item before you have fulfilled all our claims, you hereby assign to us all claims arising from the resale. We hereby accept the assignment.
6.2 If you are a merchant, a legal person under public law or a special fund under public law, the retention of title according to clause 6.1 shall also apply to other claims of us against you from the current business relationship, in particular the sale of other objects of sale.
6.3 You may only set off claims against us if they are undisputed or have been established as final and absolute by a court of law.
6.4 If you are a merchant, you waive your rights under §§ 273, 320 BGB.
7.1 The items sold within the framework of the online platform are used without exception. They have a state of preservation corresponding to their age and provenance. Complaints about the state of preservation shall only be mentioned in our description if, in our opinion, they significantly impair the overall visual impression of the item. The absence of information on the state of preservation thus has no explanatory effect whatsoever and in particular does not constitute a guarantee or quality agreement in the sense of sales law. The same applies to information of any kind, whether oral or in writing. In all cases, the actual state of preservation of the object at the time of its acceptance of bid is the agreed condition in the sense of the statutory provisions (§§ 434ff BGB). All information on the object is based on the scientific findings available at the time of publication or otherwise.
7.2 Irrespective of the provision under Item 7.1, only those details which refer to the authorship of the object are part of the quality agreed with the purchaser. A special guarantee from which rights beyond this (§§443, 477
BGB) shall not be assumed by us. Further quality characteristics other than the authorship of the object are not contractually agreed even if the object is highlighted for advertising reasons; anything else applies only if we assume a guarantee in writing for the corresponding quality or property. Separate status reports shall only be prepared in part for online auctions.
7.3 With respect to consumers within the meaning of § 13 BGB (German Civil Code), the warranty for used items shall be limited to one year after the statutory commencement of the limitation period. In all other respects, the statutory provisions shall apply.
7.4 In the case of entrepreneurs within the meaning of § 14 BGB (German Civil Code), the warranty for any defects in the goods sold is excluded. If, however, the purchaser proves within one year of handing over the object that information about the authorship of the object is incorrect and did not agree with the accepted opinion of the experts on the day of the online visit, we undertake, irrespective of Section 7.3, to assert his rights against the client. In the event of successful claims against the client, we will reimburse the purchaser for what the client has actually obtained up to a maximum of the total purchase price. In addition, we undertake to return the full commission for a period of one year in the event of proven inauthenticity. This is subject to the condition that no third party claims exist in respect of the item and that the item is returned to the registered office of Arttrade Sperling GmbH in Welzow or Berlin in unchanged condition. The proof of inaccuracy shall be deemed to have been furnished if, among other things, an internationally recognised expert refuses to include the object in the Catalogue Raisonné on behalf of the author stated in the catalogue.
7.5 Claims for damages against us for legal and material defects as well as for other legal reasons (including reimbursement of futile expenses, loss of profit as well as reimbursement of expert costs) are excluded unless they are based on intentional or grossly negligent actions on our part or on the breach of essential contractual obligations by us.
7.6 We shall not be liable for damages (including reimbursement of futile expenses, loss of profit or reimbursement of expert costs) in the event of simple negligence, unless it is a breach of essential contractual obligations. Essential to the contract are the obligation to send the object after receipt of the complete sales price in the condition in which the object was at the time of the auction, information about the authorship of the object as well as consultation, protection and care duties, which aim at the protection of life or limb of you or your personnel.
7.7 In the event of a breach of essential contractual obligations due to simple negligence, our liability shall be limited to compensation for the foreseeable damage typical of the contract per event causing the damage up to a maximum of twice the remuneration payable by you for the object to which the breached contractual obligation relates. In particular, indirect damages shall not be compensated.
7.8 The foregoing exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
7.9 The limitations of clauses 7.5 to 7.7 do not apply to our liability for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
8. Default of payment
8.1 If you are in arrears with a payment, we may charge default interest of 1% per month without prejudice to further claims. The purchaser has the right to prove lower or no damages.
8.2 If we demand damages instead of performance because of the delayed payment and if the item is sold again, the original buyer, from whose purchase contract we have withdrawn in this case due to the delay, shall be liable for the resulting damage, such as storage costs, loss and loss of profit.
9. Accessibility of the online platform
9.1 According to the current state of the art, it is currently not possible to develop software and hardware 100 % error-free. In addition, disruptions and impairments in Internet traffic are generally not within our sphere of influence and can therefore not be completely excluded by us.
9.2 For this reason, we are not liable for the uninterrupted and trouble-free accessibility and usability of the online platform, insofar as we are not responsible for this. This applies in particular to damage incurred by you as a result of your being unable to submit purchase price bids or submitting them late as a result of such a disruption, or as a result of our not receiving them or receiving them late.
9.3 If no purchase price bids can be submitted at times due to a disruption, we reserve the right to extend the offer period by the duration of the disruption.
10. Export we point out
We would like to point out that certain items (such as in particular ivory, rhinoceros horn and tortoiseshell) are subject to import or export restrictions (in particular outside the European Union) which may prevent the items from being shipped to third countries. It is your responsibility to inform yourself whether an item you have purchased is subject to such restrictions and whether and how permission can be obtained. If you instruct us to dispatch an item, the necessary permits (e.g. in accordance with CITES regulations) and other approvals and documents will be obtained from you and made available to us for the purpose of dispatching the item, unless expressly agreed otherwise. Any costs, customs duties or levies etc. incurred in connection with the export and import of the item shall be borne by you. As far as known to us, we will point out any export restrictions within the scope of the description of the items, whereby this does not release you from the responsibility to inform yourself about the export conditions as well as the further import conditions. The absence of such a reference to any export conditions does not contain any statement and in particular does not imply that there are no import or export restrictions here.
We have copyrights in all images, films and texts published on our online portal, or have acquired corresponding licenses from the rights holders, or are entitled to use them on the basis of a statutory basis of permission (such as freedom from copyright in catalogue images). The pictures, films and texts may not be used without our express consent or that of the respective author.
12. Alternative dispute resolution
12.1 The EU Commission offers the possibility of online dispute resolution on an online platform operated by it. This platform can be reached via the external link http://ec.europa.eu/ consumers/odr/.
12.2 We are not obliged to participate in conciliation proceedings pursuant to § 36 (1) no. 1 CDBG and cannot offer participation in such proceedings.