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General provisions
§1 Definitions
Within the framework of these general terms and conditions, the following terms have the following meanings:
Zacke:
Gallery Zacke Vienna, 1070 Vienna, Mariahilferstrasse 112, Stiege 1 [Staircase 1], 2. Stock [2nd floor], Tür 10 [Door 10]
Customer:
The customer purchasing objects or items sold by Zacke – whether in its own name for third-party account, whether in its own name for own account, irrespective of whether the purchase takes place within the framework of auctions, gallery sale, free sale or within the framework of internet auctions.
Consignor:
The contracting partner handing over the items to Zacke for realisation.
Auctioneer:
The person conducting the auction, calling the items and accepting the bids.
Consignment:
Handing over items to Zacke for realisation.
Auction:
Zacke regularly carries out auctions at the business premises of Zacke or at premises rented for this purpose; within the framework of these auctions, the items are publicly offered and auctioned. Placing bids is possible both for the bidders present on site as well as bidders by phone. Moreover, written bids may be placed with Zacke.
Auction without limit:
An auction or an internet auction as defined in the above paragraph where the initial bid amounts to € 1 per auction lot and where no limit has been set.
Gallery sale:
Zacke maintains a salesroom at the address Gallery Zacke Vienna, 1070 Vienna, Mariahilferstrasse 112, Stiege 1 , 2. Stock [2nd floor] where the items are not only exhibited for the purpose of being displayed prior to auctions during the business hours but where items are also offered for sale.
Free sale:
The free sale starts directly after the end of the auction and is called for an indefinite period of time. It consists of the auction lots not sold during the auction. They are displayed in the salesroom at the address 1010 Vienna, Kohlmarkt 7, stairway 3, 1st floor during the business hours and offered for immediate sale.
Internet auction:
Zacke auctions items worldwide on various publicly available internet platforms within the framework of internet auctions, based on the general terms and conditions of such internet platform on the one hand as well as based on the general terms and conditions of Zacke on the other hand.
Written bid:
It is at the discretion of each prospective buyer to submit written bids for the acquisition of items within the framework of auctions. These written bids will be taken into account by the respective auctioneer within the framework of the auction.
Bids by phone:
It is at the discretion of each prospective buyer to notify Zacke in writing that he would like to place bids by phone within the framework of an auction (see § 16 in this respect). Zacke will call the prospective buyer during this auction directly prior to the sale of the auction lot named by the prospective buyer under the telephone number stated by him und thus enable him to participate in the auction by means of stating his bids by phone in a manner equal to the bidders on-site.
Broker order:
Of course, each prospective buyer may at his discretion instruct a person not associated with Zacke to bid in his name in an auction or internet auction. To the extent that the contractual relationship between the broker and the prospective buyer is not obvious or known to Zacke, the existence of the contractual relationship is to be proven by suitable means.
Estimated value:
Within the framework of estimating the objects to be offered in the auction, an estimated value will be determined by experts of Zacke. The estimated value is the price which should be achieved in any case within the framework of the auction if a sufficient number of bidders is present, according to the expert opinions.
Initial bid:
The amount with which the offer of each auction lot within the framework of an auction or internet auction starts. Unless otherwise agreed, the initial bid amounts to 50 % of the estimated value. In case of auctions or internet auctions without limit, this initial bid amounts to € 1.00. The initial bid may also be below the limit.
Limit:
The amount below which no bid may be accepted (exception: bid accepted conditionally) within the framework of an auction or internet auction. This limit is a gross amount, i.e. it includes the fees to be borne by the seller pursuant to the fee schedule and will be agreed amicably between the consignor and Zacke. The limit must not exceed the estimated value and will be notified to prospective buyers upon request.
Conditional acceptance of bids:
Acceptance of a bid within the framework of an auction the legal effectiveness of which depends on the acts of a third party (usually consent of the consignor).
Gallery sales price:
Sales price agreed within the framework of the gallery sale. This price is exclusive of possibly transport and insurance fees, including the fees to be paid by the purchaser pursuant to the fee schedule.
Free sales price:
Sales price agreed within the framework of the free sale. This price is exclusive of the fees to be paid by the purchaser pursuant to the fee schedule.
Bidder:
A person making bids within the framework of an auction or internet auction (whether in writing, in person or by phone). In case of doubt it is always to be assumed that a bidder bids in his own name.
Highest bidder:
A person whose bid is accepted due to the fact that it is the highest bid placed (= highest bid) within the framework of an auction or internet auction (whether in writing, in person or by phone).
Lower bidder:
A person who placed a bid directly prior to the acceptance of the highest bid by another bidder within the framework of an auction or internet auction and who finally was outbid by the highest bidder.
Fee schedule:
The fees occurring during the handling of the business relationship between Zacke on the one hand and the consignors and customers on the other hand are governed by a separate fee schedule. Unless otherwise agreed, such fee schedule shall apply in the relationship with the consignor which was applicable at the time of conclusion of the consignment contract and in the relationship with the customer such fee schedule shall apply which was applicable at the time when customer made his declaration of intent constituting the contract.
Premium:
The fee pursuant to the fee schedule or separate agreement which is to be added to the highest bid within the framework of an auction and/or the free sales price and to be paid by the highest bidder or purchaser.
Consignment fee:
The fee pursuant to the fee schedule or separate agreement to be deducted from the highest bid within the framework of an auction or internet auction or the free sales price or gallery sales price and to be paid by the consignor.
Proceeds of realisation:
In case of the auction or internet auction the highest bid, in case of free sale the free sales price, in case of gallery sale the gallery sales price minus the consignment fee to be paid by the consignor.
Consumer:
Consumer within the meaning of the consumer protection act, i.e. a person who concludes the contractual agreements with Zacke not within the framework of his entrepreneurial operation.
Entrepreneur:
Entrepreneur within the meaning of the consumer protection act, i.e. a person who concludes the contractual agreements with Zacke within the framework of his entrepreneurial operation.
Handover certificate:
Within the framework of an auction, the highest bidder receives from Zacke the associated handover certificate of any auction lot purchased by him by auction after complete payment of the purchase price. This certificate entitles him to receive the respective auction lot within the framework of the handover of goods during or after the respective auction.
Counterbid:
Within the framework of the free sale, prospective buyers may submit an offer to Zacke which is lower than the initial bid price determined by Zacke or the limit notified by the consignor. The acceptance of such counterbid depends on the consent of the consignor.
Auction lots:
An auction lot may be an individual item but also a group of items (= mixed lot) which are sold within the framework of an auction. In case of mixed lots, i.e. auction lots where several items are sold at once, with a limit or initial bid of less than € 500.00, Zacke does not give a warranty regarding quantitative statements relating to the number of items included in such mixed lot.
§2 Entrepreneurs/consumers
(1) Within the framework of handling the business relationships between Zacke and the consignors and Zacke and the customers, it is distinguished in each case whether the respective customer/consignor is a consumer or an entrepreneur. The cause of this is that it is required for Zacke due to the mandatory nature of the warranty regulations in the relation with consumer to form reserves and provisions for consumer transactions the formation of which causes significant costs. It is considered unreasonable by Zacke to burden the entrepreneurs, who do not mandatorily require the formation of such reserves, with fee rates increased for this reason; therefore, different fee rates are invoiced to consumers and entrepreneurs within the framework of the handling of the transactions. While thus entrepreneurs pay lower fee rates to Zacke, their warranty right towards Zacke is restricted; consumers on the other hand have a warranty right towards Zacke governed by law, but in return, the fees to be paid by them to Zacke are higher.
(2) Each customer/consignor is obliged to state whether he concludes the respective transaction as consumer or entrepreneur when concluding agreements with Zacke.
(3) In case of written bids, bids by phone and setting up of customer accounts within the framework of auctions, this information is provided when completing the respective form intended for this purpose. Within the framework of the free sale and/or the gallery sale, this information is provided when completing the form intended for the respective customer invoice. When establishing a consignor contract, this information is also provided by completing the form intended for this purpose.
(4) If the customer/consignor fails to declare towards Zacke whether he acts as consumer or entrepreneur, he shall be deemed as consumer in the relation with Zacke in case of doubt. For merchants within the meaning of the commercial code, the GmbHG [Act on Private Limited Companies] and the AktG [Act on Public Limited Companies], the statutory assumption shall apply according to which a transaction is deemed as being concluded within the framework of the operation of a company in case of doubt.
(5) If a customer or consignor declares towards Zacke to be an entrepreneur or a consumer, this shall apply also to future transactions with this customer until revoked, unless the customer expressly declares to be an entrepreneur or consumer in case of such future transactions.
§3 Declarations
It is recorded that the employees of Zacke, with exception of the persons holding positions as managing directors of the company, are not entitled to make oral declarations (of any kind) on behalf of Zacke in legally effective manner. In particular, the persons working within the framework of the business operation of Zacke are not allowed to make promises to the consignor regarding probable proceeds or proceeds to be expected.
Consignment
§4 Handover for realisation
(1) Zacke exclusively concludes agreements with consignors according to which Zacke undertakes to realise the items handed over by these consignors in a type and manner deemed reasonable by Zacke.
(2) Each consignor is entitled to notify a limit amount in the course of handover of the items below which limit the items must not be sold (however, see in this respect also § 12 of the general terms and conditions). The limit notified by the consignor may be used by Zacke as free sales price or gallery sales price, depending on the type of realisation of the item (see in this respect also § 5 of the general terms and conditions).
In the case of limit declaration by the consignor after time of printing the catalogue, in which the object concerned is publicized and offered according to the limit price agreed to at this point in time, it shall remain the consignor?s right, that announcement lower than a required limit shall not take place. However, in the case of a purchase offer above the original limit, the consignor must pay the required fees according to contract.
(3) If the customer has not set a limit within the framework of handing over the item for realisation, the initial bid price shall replace the limit. This initial bid price may also be used by Zacke as free sales price or gallery sales price, depending on the type of realisation (see § 5 of the general terms and conditions). In case of handing over the goods to Zacke by mail or via deliveryman without such handover of goods being requested by Zacke in writing with clear description of the objects/pictures, the estimated price submitted by Zacke (see also § 33 of the general terms and conditions) shall apply unless the consignor objects to the amount determined and takes back the objects/pictures within 14 days. However, if the estimated price is determined while the consignor is present, it shall be deemed as approved by the consignor upon conclusion of the consignor contract. Zacke shall not accept any responsibility or guarantee for the return for any consignment or sending of objects, pictures, documents not solicited by Zacke.
(4) Any consignor is obliged to pay to Zacke a consignment fee in case of successful realisation of the items; the exact amount of such fee is determined by the fee schedule or corresponding to a separate agreement. This amount is deducted from the highest bid achieved, the free sales price or the gallery sales price. The resulting deduction thus is to be taken into account by the consignor when determining the limit, as the fee amount will be deducted from the highest bid, the free sales price or gallery sales price if the limit amount is achieved and thus not the limit amount determined by the consignor will be paid out.
(5) The items handed over by the consignor to Zacke will be recorded on a handover list without exception. This handover list constitutes an integral component of the realisation agreement concluded between the consignor and Zacke. This handover list has to bear the company stamp as well as the signature of an employee of the company entitled to take over the items intended for realisation. The limit amounts notified by the consignor will also be recorded on the handover list. If the consignor waives his right to notify limit amounts, they shall be replaced by the initial bids and/or free sales or gallery sales prices determined by Zacke. They are also noted on the handover list. In any case, all consignment fees and fixed costs agreed with the consignor in the respective realisation agreements are deducted from the prices determined on the handover list.
(6) Within the framework of the handover of the items intended for realisation, a consignment contract is concluded between the consignor and Zacke based on the present terms and conditions on the form sheet intended for this purpose. This contract has to be signed by the consignor on the one hand and an employee of Zacke entitled to take over the items intended for realisation on the other hand. In addition, each consignment contract bears a unique reference number, which also appears on the related handover list. The items handed over for realisation are also described with this reference number so that a subsequent identification of these items is facilitated.
(7) If a consignor has already signed a consignment contract as defined by § 4 and/or concluded such contract with Zacke, the signature of another contract for another handover of items for realisation may be waived. In this case, merely the handover list within the meaning of § 4 para. 5 is to be completed, the reference number within the meaning of § 4 para. 6 is to be attached and the list is to be signed by the consignor and/or Zacke. If no written execution of a consignor contract subject to the above-mentioned conditions takes place, the general terms and conditions of Zacke applicable upon the signing of the last contract and/or the terms and conditions, agreements applicable within the framework of the signing of the last consignment contract and possible special agreements made with the consignor shall apply to the present handover of items for realisation.
(8) Zacke displays the items to be sold in most cases after taking photos itself or by using the photos handed over by the consignors also on the internet under www.zack.at and possible other addresses. The consignor consents to the displays of his items within this framework and takes note that such display often also will continue when the item has already been sold or returned. In this case, Zacke will attach a note to the items stating that the item is no longer available. Also the customer grants Zacke his consent that the display of the item purchased by him continues and that it is displayed in the type and manner described in this paragraph.
§5 Types of realisation
(1) Being a trading and auction enterprise, Zacke has the experience to assess in which manner the best possible realisation of items can be achieved. While an international realisation within the framework of an internet auction is more promising for certain types of items, other items can better be sold by means of free sale, gallery sale or auctions (with subsequent free sale or gallery sale).
(2) For this purpose, Zacke determines the type of the realisation in the customer’s interest; of course, a limit set by the customer (§ 4, para. 2) has to be observed in this respect.
(3) If the items to be realised are sold by auction (whether in the framework of an auction or of an internet auction), no bid below the limit stated by the consignor may be accepted. If an item is realised by means of free sale or gallery sale, the free sales or gallery sales price must not be below the limit.
(4) The consignor is entitled to exclude the realisation within the framework of an internet auction or within the framework of gallery sales in the consignment contract in the passage intended for this purpose. However, this exclusion of realisation possibilities declared by the consignor shall become ineffective as soon as Zacke at any time equates the consignor fee to be paid by the consignor within the framework of an internet auction or gallery sale in case of successful realisation of the item with the fee to be paid by the consignor in case of realisation in an auction or free sale pursuant to the fee tariff. The consignor does not have to be informed of this declaration of the equalisation of fees. The equalisation of the fees may also take place within the framework of an increase of the limit or the initial bid. In this case, Zacke may increase the limit notified by the consignor and/or the initial bid determined by Zacke in such manner that the net proceeds achieved in case of realisation within the framework of an internet auction or gallery sale after deduction of all consignor fees are not below the proceeds to which the consignor would be entitled in case of realisation within the framework of an auction or free sale. The consignor is not separately informed of this equalisation of fees.
§6 Right to carry out own-name transactions
(1) Applying the provisions of §§ 400 to 405 HGB [Commercial Code] mutatis mutandis, Zacke shall be entitled to declare to act in this transaction in its own name and thus itself to purchase the item handed over by the consignor for realisation.
(2) In this case, the price for own-name transactions of Zacke amounts to 125 % of the limit pursuant to § 4 para. 2 and 3 of these general terms and conditions – in deviation from the provisions under the commercial code.
(3) When handing over the item for realisation, the consignor shall be entitled to notify a price for own-name transactions of Zacke deviating from paragraph 2. In this case, such price for own-name transactions is to be stated separately on the handover list.
§7 Quality of the items handed over:
(1) The consignor declares that he does not have any special knowledge regarding the origin, provenance or source of supply of an item handed over to Zacke for realisation which is suitable to negatively affect the value of the item. Such information includes in particular expert opinions or indications of origin by specialists and/or knowledge of sources of supply which might suggest the conclusion that despite its external appearance, the item handed over to Zacke does not correspond to the classification that would generally be appropriate exactly because of this external appearance among experts. Additionally, the consignor is obliged to inform Zacke whether the item consigned was offered somewhere else in the past two years.
(2) If it turns out that the consignor has such information but waived to make such information accessible to Zacke, Zacke shall be entitled to declare the consignment contract as dissolved and to request damages amounting to twice the limit pursuant to § 4 para. 2 and 3 of the general terms and conditions from the consignor.
(3) Zacke may make the acceptance of the consignment dependent on a guarantee of authenticity given by the consignor for the item handed over. This will be done by Zacke above all in such cases in which Zacke doubts the authenticity of the item und would not accept the item for consignment without a guarantee of authenticity given by the consignor. When giving such guarantee of authenticity, the consignor undertakes to compensate Zacke for such damage caused by the lack of authenticity of the item in case that such lack of authenticity of the item turns out. This means that the consignor is obliged in this case to pay the lost premium and consignor fees to Zacke and to reimburse possible costs.
§8 Doubt of authenticity
(1) If a customer expresses doubts of the authenticity of an item purchased after the purchase or doubts of other characteristics represented within the framework of the purchase, it is to be clarified by means of expert determination whether such concerns are justified. Zacke will name 3 acknowledged experts in the respective area of expertise to the purchaser from which the purchaser may choose one. This expert chosen will be instructed by Zacke to prepare an expert opinion regarding the authenticity of the item. Then, the content of the expert opinion shall be binding upon all parties involved in the sales transaction (this means also the consignor) to the legally admissible extent.
(2) If the expert opinion comes to the conclusion that the concerns of the customer are unjustified, the customer expressing the doubt shall be bound to pay the costs of the expert opinion.
(3) If the expert opinion comes to the conclusion that the concerns of the customer are justified, the purchase is to be reversed. Thus, any purchase price already paid is to be repaid to the customer concurrently with handing over of the item purchased within 28 days after availability of the expert opinion. In this case, the consignor shall be bound to return any proceeds of realisation possibly already paid within 28 days, in addition to reimburse the costs of the expert opinion obtained and to pay a cancellation fee determined in the fee tariff to Zacke.
If the consignor expressed concerns regarding the correctness of the expert’s report regarding the item prepared by Zacke prior to start of the auction or 24 hours prior to expiry of the internet auction or prior to start of the free sale and/or gallery sale which concerns were rejected by Zacke, the claim of Zacke for reimbursement of the costs of the expert opinion obtained and the payment of a cancellation fee shall not apply.
(4) The expert determination procedure provided for may be waived by mutual consent between Zacke and the customer. In this case, the agreement between Zacke and the customer replaces a possible expert opinion. This applies also in the relation with the consignor.
(5) If the consignor claims the authenticity of a doubtful item towards Zacke and if it turns out after obtaining a corresponding expert opinion within the meaning of this provision that this item does not correspond to the statement of the consignor, the consignor shall be bound to take back the item against repayment of any proceeds of realisation already paid to him and to reimburse the costs of the review to Zacke within the meaning of this provision. Any possible claim in excess thereof pursuant to § 7 remains unaffected.
§9 Withdrawal of items:
(1) Each consignor is entitled to declare at any time that a further realisation of the items handed over to Zacke has to be refrained from. What is excluded from this are the periods of time mentioned in the paragraphs 4, 5 and 6.
(2) The realisation of items by Zacke constitutes a cost-intensive procedure which usually is compensated for by the commission / the premium to be paid to Zacke. To the extent that a consignor thus declares not to wish a further realisation of the items by Zacke, he is obliged to pay withdrawal fees to Zacke.
(3) The amount of the withdrawal fees results from the fee schedule.
(4) A withdrawal of items is no longer admissible from the start of the 120th hour(5 days) prior to the auction until after the end of the auction.
(5) In case of realisation of items by way of internet auction, a withdrawal is not admissible from the start of the 48th hour prior to posting the items on the internet until after expiry of the time limit for making bids.
(6) In case of realisation of items in free sale or gallery sale, a withdrawal shall not be admissible if the reservation of an item has already been promised to a customer. In this case, the consignor is entitled to declare a conditional withdrawal in case that the customer does not make use of the reservation of the item.
§10 Lien / right of retention
(1) Zacke has a lien and right of retention regarding all items of the consignor until all receivables of Zacke vis-à-vis the consignor are paid. This lien and right of retention applies to all consignments of the consignor, also such ones which have taken place at an earlier or later point of time than the present one. This means that even if costs occurring due to only one single consignment remain unpaid, the return of all items supplied by the consignor until that date may be refused until payment of such costs. This applies also to all other items of the consignor in the custody of Zacke (see in this respect the special provisions for consumers in paragraph 4).
(2) To the extent that the consignor was sent reminders to satisfy the receivables of Zacke due at least twice without success, Zacke shall be entitled to realise all items in the custody of Zacke by way of auction. In this case, the reservations made by the consignor (limits etc.) shall not apply and an auction may take place also without limit (see in this respect special provision for consumers in paragraph 4).
(3) This lien and right of retention applies mutatis mutandis also in the relation with customers (see in this respect the special provision for consumers in paragraph 4).
(4) Special provision for consumers: In the relation with the consumer, the lien, right of retention and right of realisation is restricted to that end that it exists only for collection of receivables which are actually or legally connected with the item to be realised in each case as pledge.
§11 Storage charges, exhibition fees, costs
(1) The storage of the items handed over to Zacke requires a high expenditure of costs on part of Zacke as not only a corresponding store room has to be maintained but also the insurance of the items, which are often valuable, has to be ensured.
(2) Usually, the costs of storage of items are covered by the consignor fees / premiums to be invoiced by Zacke. To the extent that a storage of items takes place for whatever reason which exceeds the storage duration typically involved in case of handling of such transactions, the consignor is obliged to pay for the storage of his items a storage fee which is determined in the respectively valid fee schedule.
(3) If items are offered in free sale or gallery sale after futile offer within the framework of an auction or internet auction, the consignor shall be obliged to participate in the costs incurred due to that by paying exhibition fees as determined in the fee schedule. These exhibition fees are not success-related and thus occur irrespective of whether or not the items are realised in free sale or gallery sale.
(4) Within the framework of conclusion of a consignor contract between Zacke and the consignor as stipulated under § 4, it may be agreed that the consignor is invoiced for costs for various services by Zacke. If the price for these services is not already estimated in the consignment contract or if it is to be expected that these estimated amounts are exceeded, Zacke shall inform the consignor about the amount of the costs to be expected in advance in writing (cost estimate). The consignor is entitled to object to this cost estimate within good time (see § 30 of the general terms and conditions) unless such estimate has already been made within the framework of conclusion of a consignment contract. All costs of services for which the consignor received estimates become due upon invoicing by Zacke.
§12 Procedure in case of failure of the realisation attempts
(1) Zacke shall take efforts to achieve at least such limit or initial bid by realisation of the items that is provided for in § 4 para. 2 and 3 of the present terms and conditions. If the putting up for auction of the item within the framework of an auction or an internet auction remains unsuccessful or if an item is offered without success in free sale or gallery sale for a duration of three months, it is to be assumed according to the agreement that a sale of the item is not possible at the limit or initial bid set.
(2) In this case, Zacke is entitled to reduce the limit or the initial bid after the first unsuccessful putting up for auction within the framework of an auction or internet auction or offer within the framework of free sale or gallery sale by 30 % and after each other unsuccessful offer or putting up for auction by another 20 %, unless the consignor objects to this reduction of the limit or initial bid within a period of time of one week after receipt of the notice with which the result of the auction is notified. The reduction does not have to be expressly mentioned in this notice.
(3) If a consignor objects to the reduction of the limit or minimum price, this shall be deemed as withdrawal, applying § 9 of the present terms and conditions correspondingly. Any further realisation of the item shall be refrained from, but the consignor shall be obliged in this case to pay to Zacke the withdrawal fee stipulated for this case in the fee schedule.
(4) Zacke is entitled to auction off an item which has already been put up for auction within the framework of an auction or internet auction or which has been offered for sale for a duration of 2 years in free sale or gallery sale without success within the framework of an auction or an internet auction WITHOUT LIMIT.
§13 Accounting of proceeds of realisation
(1) Zacke is obliged vis-à-vis the consignor render accounts regarding the achieved highest bids or gallery sales or free sales prices within a period of 12 weeks after the end of the auction or internet auction or within 6 months after start of the free sale or gallery sale. The payment of the proceeds of realisation mentioned in such statement of account takes place within a period of 8 weeks after Zacke receives payment from the customer. The consignor is obliged to object to the accounting within a period of 4 weeks if there are any ambiguities, otherwise the accounting shall be deemed as approved.
(2) If within the framework of a specific consignment a payment of the proceeds of realisation by Zacke to the consignor has already taken place and after payment of such proceeds of realisation further items from this same consignment remain with Zacke for realisation, a further accounting within the meaning of § 13 paragraph 1 of these terms and conditions shall take place only after one-off request issued by the consignor to Zacke in writing.
(3) The type of payment of the proceeds of realisation is amicably determined between Zacke and the consignor in the consignment contract in the passage provided for this. In case of certain payment types, Zacke may invoice the consignor for a lump-sum fee determined in the fee tariff per payment.
(4) In agreement with the consignor and upon conclusion of the consignment contract Zacke may agree the payment of a payment on account on the expected proceeds of realisation at a point of time also to be determined amicably in the passages provided for this. Such payments on account are subject to interest determined in the fee tariff. The payment on account including interest will be deducted from the proceeds of realisation upon the first accounting within the meaning of § 13 paragraph 1 – 3. If, after deduction of the payment on account including interest upon first accounting a balance to the detriment of the consignor or to the detriment of Zacke results, also this amount shall bear interest at the interest rate stipulated in the fee tariff for this purpose. In addition, this amount is to be repaid to Zacke by the consignor within 14 days after accounting. In case of default of the consignor, the lien pursuant to § 10 paragraph 2 shall take effect.
(5) Pursuant to § 20 paragraph 3 of these terms and conditions, Zacke may grant the customer a 6-months deferment of the purchase price of an auction lot. Such deferment may also be granted in case of items in free sale or gallery sale. The prerequisite for the granting of such deferment is the provision of a down payment on the day of the auction and/or in case of the free sale or gallery sale on the day of conclusion of the purchase contract. In the relation with the consignor, the accounting of such lots where the purchaser was granted deferment takes place in accordance with the actual receipt of the respective partial payments by the customer. The auction lot(s) purchased or items from free and/or gallery sale are handed over to the customer only after complete receipt of the purchase price including all fees and interest. If the customer is in default with his partial payments, he shall be obliged to pay to Zacke such interest stipulated on the day of the auction within the framework of the respective fee schedule.
Auctions
§14 Place and time of the auctions
(1) Occasionally, Zacke organises auctions.
(2) These auctions usually take place in Vienna at the registered seat of the company or at premises specifically leased for this purpose, but Zacke may choose the place of the auction at its discretion.
§15 Written bids
(1) Each prospective buyer may place a written bid with Zacke until 1 hour prior to each auction. Such written bid may be handed in personally at the business premises of Zacke. However, it may also be submitted by mail, by fax or by e-mail. In case of bids placed by phone or orally, Zacke reserves the right to make the execution dependent on a written confirmation by the principal. Furthermore, Zacke does not assume any warranty for the execution of written bids.
(2) A written bid will be taken into account by the respective auctioneer, with the client being treated like any bidder present on site. This means that the auctioneer on the one hand has to take into account the present bidders on site and on the other hand also the written bids and due to that also a bidding process between the present bidders on site and the written bid placed but also between two written bids may result.
(3) In case of competing written bids and bids from bidders present on site, the written bid will be preferred over the bids from bidders present on site, in case of two written bids, Zacke will prefer the bid which was available earlier.
(4) On principle, Zacke reserves the right to refuse the acceptance of a written bid.
(5) Written bids not corresponding to the bid increments determined by Zacke in table form will be rounded up to the next higher bid increment. The list of the bid increments determined by Zacke in table form constitutes an integral component of the general terms and conditions, is posted in the room where the auction takes place and is handed over to prospective buyers by employees of Zacke upon request.
(6) If a written bid is taken into account which is below the lowest estimated value, the auctioneer will fully exhaust the top limit (= amount of the bid made) of this bid at the first opportunity. In case of such bids, the acceptance of a bid below the top limit stated by the prospective buyer is not possible.
(7) The written bid has to include the auction lot stating the catalogue number and the maximum top limit bid. The top limit is exclusive of premium and applicable legal VAT on such premium.
(8) For the allocation of the bid, exclusively the catalogue number stated on the bid by the prospective buyer is relevant. Any ambiguity shall be at the expense of the prospective buyer. The written bid must not be used for notices to Zacke of whatever kind. Such notices on written bids will neither be recorded nor processed by Zacke.
(9) Any written bid already placed will only be cancelled by Zacke if the rescission from this written bid is notified to Zacke at least 72 hours (receipt by Zacke) prior to start of the respective auction in writing.
(10) Zacke may refuse to execute written bids without stating reasons and/or make them dependent on a down payment. Such down payment will be reimbursed to the prospective buyer by Zacke within 5 working days after the respective auction if his written bid is unsuccessful. Such reimbursement takes place by bank transfer without exception. It is thus the prerequisite for the reimbursement that the account details of the prospective buyer are known.
(11) The execution of bids is free of charge.
§16 Bid by phone
(1) Each prospective buyer may at his discretion make his bids within the framework of the auction by phone. However, he has to inform Zacke thereof at the latest one hour prior to the respective auction in writing.
(2) Unless specifically agreed (see paragraph 3), a bid by phone is to be considered as bid amounting to the initial bid on principle. If Zacke cannot reach a prospective buyer who placed a bid by phone during the auction, Zacke will only make bids on behalf of the prospective buyer up to the initial bid when the respective auction lot is called, unless otherwise specifically agreed (see paragraph 3).
(3) To the extent that the bidder by phone is not willing to bid at least the lower estimated value, this is to be informed already when submitting the bid by phone.
(4) On principle, Zacke reserves the right to refuse the acceptance of a bid by phone.
§17 Conditional acceptance of bids:
(1) If in case of a certain auction lot the achieved highest bid is below the limit set (§ 4 para. 2 and para. 3), the bid of this highest bidder may be accepted only conditionally. This will be proclaimed by the auctioneer during the auction.
(2) In case of a bid accepted conditionally, Zacke will contact the consignor of the respective auction lot and find out whether the consignor objects to the acceptance of such highest bid below the limit. If the consignor does not object within a period of 7 days after service (see § 33) of the notice regarding the amount of the respective bid accepted, the consent of the consignor shall be deemed as granted. What is authoritative for adhering to such period is the receipt of the objection by Zacke. The consignor is informed about one or several bids accepted conditionally by means of registered letter or by means of fax letter.
(3) The conditional acceptance of bids is deemed as provisionally invalid to the extent that Zacke does not inform the highest bidder within 14 days that the acceptance of the bid was approved by the consignor. The issue of an invoice amounting to the highest bid including premium and VAT shall be deemed as such notice. The date of the notice to the highest bidder about the approval of the acceptance of the bid by the consignor shall apply in case of acceptance of a conditional bid for calculating the other periods that usually are calculated from the day of the auction. Thus, the highest bidder is bound to his bid accepted conditionally for a duration of 14 days.
§18 Acceptance of the bid of a lower bidder
(1) If it turns out after execution of the auction that the highest bidder is not able to purchase the item with regard to which his bid was accepted or if other circumstances oppose the purchase by the highest bidder, Zacke shall be entitled to notify the lower bidder thereof and to request him to enter into the rights of the highest bidder and to purchase the auction lot in question at the price last bid by him. In this case, a contract between Zacke and the lower bidder comes into existence upon notification of the lower bidder. The issue of an invoice amounting to the highest bid including premium and VAT within 6 weeks after the respective auction shall be deemed as such notification (service upon the lower bidder see § 33). The provisions of § 21 apply mutatis mutandis.
(2) It may happen that several identical auction lots were consigned. In such case, the auctioneer may accept one or several other bids of the lower bidder(s).
§19 Execution of the auction
(1) The bid of the highest bidder is accepted, unless a limit was agreed with the consignor (see § 17). Unless otherwise deemed reasonable by the auctioneer, the increments determined by Zacke in a table are usually bid. None of the parties is entitled to derive any rights from an upwards or downwards deviation from the bid increments determined in the table. Each prospective buyer wishing to participate in an auction has to register with Zacke prior to making a bid. Such registration requires the legitimation of the customer as well as payment of an appropriate down payment (see also § 15 paragraph 10). Within the framework of this registration, a number is allocated to the prospective buyer (bidder number). After acceptance of the bid by the auctioneer, the highest bidder has to show the number allocated to him to the auctioneer so that the auctioneer may allocate the bid accepted to the registration of the highest bidder. On the registration form, thus the bids accepted of the highest bidder within the course of the auction are noted. Prospective buyers may participate in an auction without registration by way of exception if Zacke already knows such prospective buyers and Zacke does not have any doubts regarding their creditworthiness.
(2) In case of dispute or if a bid has been overlooked, the auctioneer is entitled to reverse the possible acceptance of a bid and to continue to auction off the auction lot unless the handover certificate for the respective auction lot has already been handed over to the highest bidder.
(3) The auction (public sale) takes place on a consignment basis pursuant to the provisions of these general terms and conditions as well as pursuant to §§ 244 – 246 Gewerbeordnung [Trade, Commerce and Industry Regulations Act] of 1994 and § 19 paragraph 4. By way of exception, the auctioneer is entitled to withdraw lots, to carry out the auction in deviation from the order of the catalogue numbers and to put up auction lots for auction jointly and/or to divide auction lots including several items.
(4) Each consignor is entitled on principle to withdraw the auction lots handed over for auction until the start of the auction. Thus, no liability or warranty may be assumed for the actual sale by auction of any auction lot.
§20 Payment of the purchase price
(1) The purchase price for the auction lots purchased by auction is due for payment upon acceptance of the bid unless otherwise expressly agreed.
(2) The premium provided for in the fee schedule applicable at the respective auction date and possible taxes, fees and charges of any kind to be applicable on the highest bid and the premiums shall be added to the highest bid.
(3) Upon request of the highest bidder, Zacke may defer the payment of the purchase price for a maximum duration of 6 weeks after the auction date. The prerequisite for this deferment is the payment of a down payment of at least 33 % of the purchase price on the day of the auction.
§21 Procedure in case of non-payment of the purchase price
(1) If it turns out after execution of the auction that the purchase price cannot be paid by the highest bidder, Zacke shall be entitled to come back to the lower bidder (see in this respect § 18) and to request him to pay the last amount bid by him (including premium and other fees) for the auction lot.
Such procedure only shall be admissible if not more than 14 days have passed between the auction date and the request to the lower bidder (day of dispatch or request by registered letter). 14 days after the auction date, the bid of the lower bidder ceases to be valid and the lower bidder may afterwards no longer be requested to enter into to purchase contract.
(2) Zacke shall have no right to request the lower bidder to enter into the purchase contract if the lower bidder meanwhile purchased another, equivalent auction lot within the framework of the same auction and/or the free sale following this auction instead of the auction lot within the framework of which he was overbid.
(3) If the purchaser is in default with his payments, he shall be obliged to pay to Zacke such interest stipulated on the day of the auction within the framework of the respective fee schedule.
(4) The provisions of § 10 of the general terms and conditions apply mutatis mutandis also in the relation between Zacke and the purchasers.
§22 Guarantee of authenticity
(1) Zacke prepares its expert assessments and descriptions to the best of its knowledge and belief and conducts research relating to age determination and authenticity of any item/picture to the extent that this is possible in the limited time available for making the catalogue.
In case of objects made of stone, wood, porcelain or bronze, as well as all paintings, Zacke cannot give a guarantee for the age determination. In case of signed objects or pictures, Zacke cannot guarantee that the respective object/picture origins from the artist named or from his life-time. In case of Japanese colour woodcuts, Zacke cannot guarantee from which print run the sheet origins.
(2) Items found within the framework excavations often were broken and were pieced together – still at the excavation site and/or in the country or origin – and/or missing parts were remodelled occasionally. However, this does not mean that the items are not authentic and/or do not origin from the respective era. Such restoration work would merely be a reason for justified complaints of the purchaser in cases where Zacke expressly guarantees that no remodelling and restoration has taken place. In all other cases, the purchaser has to assume that parts of such items are remodelled occasionally and that they sometimes also are put together from several items. Such processes occur beyond the sphere of control of Zacke and naturally Zacke does not have knowledge of them.
(3) In the relation with entrepreneurs, the warranty period of Zacke is reduced to a period of six weeks. Zacke makes the predominant majority of transactions in its own name but for third-party account, which means that Zacke is obliged to hand over the purchase price paid by the customer minus fees to the consignor within a short period of time. In order to enable Zacke to deal with complaints in such good time that they can be re-examined also vis-à-vis the consignor (seen from point of view of Zacke), thus a duration of the warranty period has to be determined which facilitates a final clarification of the warranty situation even prior to payment of the purchase price to the consignor.
(4) In the relation with consumers, the respective statutory warranty provisions shall apply.
(5) The auction lots to be auctioned off are exhibited for inspection prior to the respective auction. In doing so, Zacke offers the opportunity to everybody to examine the quality and the condition of the auction lots displayed to the extent that this is possible within the framework of such inspection in advance. The experts of Zacke describe the auction lot taken over for auction. The consignors determine the initial bids together with Zacke or its experts, unless otherwise stated in the catalogue or in the respective expert’s report. Any and all information regarding manufacturing technology, material, provenance, design and condition of any item is based on published or otherwise generally accessible scientific findings which were determined by the experts of Zacke with due care and accuracy. However, Zacke does not warrant the correctness of such information. There is no liability for all other information in catalogue and expert’s report, either. This applies in particular to pictures shown in the catalogue. These pictures have the purpose to bring the prospective buyers to the respective auction after the inspection in advance. They are neither authoritative for the condition nor the characteristics of the auction lot shown. In the catalogue and the expert’s reports, only such defects and damage are stated which significantly impair the artistic or commercial value of an auction lot.
(6) Complaints relating to the price (highest bid) after the acceptance of the bid are excluded.
(7) Zacke reserves the right to correct information in the catalogue prior to the auction. These corrections either take place by written notice at the location of the auction or orally by the auctioneer directly prior to the auction of the auction lot in question. Such correction constitutes a modification of the expert’s report, in particular within the meaning of § 22 paragraphs 1, 3 and 4 of these terms and conditions.
(8) All auction lots being auctioned can be examined prior to the auction. These auction lots are used. Claims for damages exceeding the liability stated within the framework of § 22 paragraph 1-2 and resulting from other defects as to quality or other defects of an auction lot are generally excluded. By making a bid, the bidder confirms that he has inspected the auction lot prior to the auction and assured himself that it is in accordance with the expert’s report and/or the catalogue text.
§23 Takeover of auction lots purchased by auction or items purchased in free sale and/or gallery sale
(1) The highest bidder is obliged to collect the auction lots upon payment of the purchase price on the day of the auction at the premises of Zacke or to place a shipping order regarding these auction lots to Zacke against remuneration within one week after the day of the auction. The amount of the shipping costs is determined in the fee schedule to the extent that this is possible in advance. If the highest bidder comes in default with taking over the items purchased by auction, he shall be obliged to pay to Zacke a storage fee, which is also determined in the fee schedule. If payment of the purchase price by the highest bidder has been deferred, he shall be obliged to pay the storage fee separately determined in the fee schedule for the case of deferment of the purchase price.
(2) If the highest bidder fails to collect the auction lots purchased by him in the auction, Zacke shall be entitled to realise the auction lots again after expiry of a period of 2 months; in the further course, the highest bidder in default with collection shall be treated like a consignor with regard to the re-realisation of the auction lots not collected by him. All accounts payable of the highest bidder are to be satisfied with the consignor receivables resulting for the highest bidder in default after re-realisation, a possible surplus amount is to be paid out pursuant to § 13 of these terms and conditions. If the highest bidder in default failed to notify bank details to Zacke for the purpose of transfer of such additional amount, such additional amount is to be deposited with the court within 6 weeks after receipt of the payment by the respective customer at costs of the customer. In case that the payment of the purchase price by the highest bidder has been deferred, he has to collect the auction lots purchased by him either on the day of the final maturity of the purchase price deferred or within 2 weeks after missing the payment date (see § 20 paragraph 3 of these terms and conditions). In case of default of only one partial payment, the payment date is missed and the entire purchase price becomes immediately due for payment.
(3) The re-auction of auction lots purchased by auction pursuant to § 23 paragraph 2 of these terms and conditions on principle takes place by way of auction. On principle, the initial bid of the auction lots to be re-auctioned is determined by Zacke to amount to 50 % of the highest bid for the auction lot which is to be re-realised and which was not settled by the highest bidder in default. On principle, no limit is stated for the auction lot to be re-auctioned. If the re-realisation within the framework of the first re-auction fails, the initial bid will be reduced pursuant to § 12 paragraph 2 of these terms and conditions.
(4) In case of re-realisation of the auction lots purchased by him, the highest bidder in default is not separately informed about this. A final accounting within the meaning of § 23 paragraph 2 of these terms and conditions shall be sent to him by registered letter to the address notified most recently after re-realisation of all auction lots purchased by him. If a remaining balance in favour of Zacke results within the framework of this final accounting, such balance shall bear interest at the interest rate determined for this in the fee schedule applicable on the day of issue of this final accounting. The maturity of the remaining balance occurs upon issue of this final accounting.
(5) The highest bidder in default may at any time release himself from the re-realisation of one or several auction lots purchased by him in the auction by paying the purchase price as well as all fees and interest. The withdrawal regulation pursuant to § 9 of these terms and conditions constitutes the sole exception to this regulation.
(6) Auction lots which are not collected on the day of the auction or for which no shipping order against remuneration was placed within one week after the day of the auction (receipt by Zacke) are stored at the risk of the highest bidder. In addition, Zacke is entitled to store auction lots sold during auctions and already paid but not yet collected at risk and expenses of the highest bidder, including costs of a corresponding insurance of these auction lots with a forwarding company. It is deemed as agreed that the provisions of these terms and conditions relating to the re-realisation of unpaid auction lots or auctions lots which are paid but not collected are applied also to such auction lots which are exhibited or stored at the premises of Zacke.
(7) An approval of the Federal Office for the Protection of Historical Monuments is required for the export of antiques and objects of art from Austria. In any case, Zacke informs orally at the beginning of an auction or by means of notice displayed at the exhibition premises during the free sale or gallery sale or within the framework of the description in text form in case of an internet auction about such antiques and objects of art for which probably no export permit will be granted.
§24 Shipping
(1) It goes without saying that Zacke is willing to send the items purchased to the customer also by way of shipping for the sake of customer service. In this case, Zacke is not liable that the items are handed over to a tradesman authorised for this purpose without damage. Possible claims for damages due to damaging of the items during transport are to be asserted by the customer directly against the carrier.
(2) The customer undertakes to reimburse the shipping costs to Zacke plus a lump-sum handling fee for packaging of the item and the other handling determined in the fee schedule.
(3) Placing the shipping order with Zacke requires the conclusion of a transport insurance. Such transport insurance may be concluded via Zacke at the transport insurance tariff determined in the fee tariff applicable on the day of the respective auction. However, the customer has also the possibility to take out an insurance himself. In this case, he has to prove the existence of such insurance by presenting the policy to Zacke. Furthermore, in particular all insurance terms of these terms and conditions shall apply in this connection.
(4) Within the framework of placing a shipping order with Zacke, it is at the discretion of the customer to instruct Zacke also with the packaging of the items to be shipped. Zacke charges the customer with the packaging tariff determined for this in the fee schedule applicable on the day of placing the shipping order. Zacke makes available to the customer a high-quality packaging. However, Zacke is not liable for any damage to items caused due to this packaging during the transport or during unpacking.
FREE SALE
§25 General provisions
(1) On principle, the following provisions of these terms and conditions apply mutatis mutandis to the free sale: § 1 – 13, § 20 – 25 as well as § 27 – 33.
(2) In case of a realisation within the framework of the free sale, the respective free sale lot is sold at the limit agreed with the consignor or at the initial bid determined by Zacke for want of such agreement.
(3) The free sale usually takes place in Vienna at the registered seat of the company or at premises specifically leased for this purpose, but Zacke may choose the place of the free sale at its discretion.
(4) A prospective buyer may submit to Zacke an oral or written counteroffer within the framework of the free sale. Such counteroffer remains valid for 4 weeks from the day of submission. As such counteroffer is below the limit agreed with the consignor and/or the initial bid determined by Zacke, Zacke shall inform the consignor of the receipt of such counteroffer within the meaning of § 17 of these terms and conditions. The further procedure also corresponds to § 17 of these terms and conditions mutatis mutandis.
(5) The purchase price for the free sale lots purchased in free sale is due on the day when the purchase agreement comes into existence unless expressly otherwise agreed. Such purchase agreement may be concluded both in written and in oral form. However, Zacke reserves the right to make the coming into existence of such agreement dependent on the written form.
(6) The premium provided for in the fee schedule applicable on the respective exhibition date and possible taxes, fees and charges of any kind applicable on the free sales price and the premiums shall be added to the free sales price.
(7) If the purchaser is in default with his payments, he shall be obliged to pay to Zacke such interest stipulated on the day when the purchase agreement comes into existence within the framework of the respective fee schedule.
(8) The periods determined in §§ 20 and 23 of these terms and conditions start with the day when the purchase agreement comes into existence, all other provisions of §§ 20 and 23 of these terms and conditions are to be applied mutatis mutandis.
INTERNET AUCTIONS
§26
(1) In case of sale of auction lots by means of internet auctions, the general terms and conditions of the operator of the respective internet platform apply. If the provisions of the operator of the respective internet platform do not include a regulation for a certain case, the rules included in the present terms and conditions shall subsidiarily apply mutatis mutandis. If rules regarding a certain case are included both in the provisions of the operator of the respective internet platform as well as in the present general terms and conditions which are contradicting, the regulations included in the provisions of the general terms and conditions of the operator of the respective internet platform shall apply in case of doubt.
(2) In internet auctions, only the highest bid amount plus the amounts stated in the respective offer (shipping costs, etc.) is to be paid by the highest bidders. In this case, no premium is paid.
(3) As in case of the execution of an internet auction no premium is to be paid by the highest bidders – as stated in para. 2 – a fictitious highest bid is to be calculated out of the highest bid made within the framework of an internet auction in such manner that the amount to be paid as premium by the highest bidder within the framework of execution of an auction is deducted from the highest bid in the internet auction. This (fictitious) highest bid forms the calculation base of the accounting vis-à-vis the consignor and is shown within the framework of the accounting.
GALLERY SALE
§27 General provisions and pricing
(1) On principle, the following provisions of these terms and conditions apply mutatis mutandis to the gallery sale: § 1 – 13, § 20 – 24 as well as § 27 – 29. All periods stated in these terms and conditions apply mutatis mutandis to the gallery sale and start in each case on the day when the respective purchase agreement comes into existence.
(2) The prices to be seen from the price lists in case of gallery sale are gross prices, thus, they include the statutory VAT and all fees. In deviation from the provisions for free sale and auction, the customer is thus not obliged to pay a premium in this case. Separate services with which the customer may instruct Zacke, for example the execution of expert’s reports or the restoration of items purchased in gallery sale, will be invoiced separately to the customer (principal) by Zacke and are not included in the gallery sales price on principle.
(3) Also in the gallery sale, there is the possibility of shipping, in this case the provisions of § 24 apply mutatis mutandis.
§28 Hansel / penalty
(1) Zacke may make the reservation of items in gallery sales dependent on receipt of a down payment. If Zacke grants the reservation of one or several items in gallery sale to a prospective buyer without requesting a down payment from such prospective buyer and/or without such prospective buyer making a down payment, the reservation is to be considered as non-binding on principle. In this case, Zacke reserves the right to sell the items reserved for such prospective buyer at any time to another prospective buyer.
(2) If a down payment has been made, this is to be considered as hansel within the meaning of the ABGB [Austrian Civil Code]; thus, the customer is entitled to rescind the purchase contract in question against waiver of the down payment made within a period of 14 days after making the down payment. As agreed, it is in particular to be considered as rescission from the purchase contract if the customer does not provide the remaining purchase price within 14 days after paying the hansel.
§29 Default of the purchaser
(1) If the customer fails to collect the item despite complete payment of the purchase price, Zacke shall be entitled after expiry of 2 months to realise the item by re-realisation applying the provision of 3 23 of these terms and conditions mutatis mutandis.
MAIL ORDER
§30
(1) If a customer is a consumer and if the agreement between Zacke and the consumer was concluded exclusively using one or several means of long-distance communication, the consumer shall be entitled to rescind the purchase contract within a period of one week after receipt of the delivery. A corresponding note regarding this right of rescission can be found on all order forms of Zacke and on an information leaflet attached to the delivery.
(2) In case of return shipment, the consumer is obliged to notify the return shipment to Zacke immediately in writing and to return the goods at own costs and risk to Zacke; after successful returning of the items acquired, the purchase price paid is repaid to the consumer. The receipt of the returned items by Zacke in the same condition in which they were sent to the customer on the one hand and Zacke having knowledge of the bank details of the customer on the other hand are the conditions for the repayment of the purchase price. As such repayments of the purchase price are exclusively carried out by means of transfer, such repayment can only take place if Zacke knows the corresponding bank details. If the customer fails to notify corresponding bank details to Zacke within 6 weeks after written notification of the return shipment of the items purchased by him, the purchase price to be repaid will be deposited with the court by Zacke at costs of the customer.
(3) In deviation from § 5i para. 1 KSchG [Consumer Protection Act] it is agreed that the delivery period provided for in § 5i para. 1 KSchG is extended to 180 days, pointing to the fact that the items dealt with by Zacke often are subject to longer delivery periods.
FINAL PROVISIONS
§31 Applicable law, place of jurisdiction
(1) To the admissible extent, it is agreed that the court exercising jurisdiction in commercial matters for Vienna Inner City shall have the exclusive jurisdiction over disputes between Zacke on the one hand and customers and/or consignors on the other hand.
(2) This agreement regarding the place of jurisdiction does not apply to consumers to the extent that the consumer has a place of abode in Austria.
(3) Exclusively Austrian law is to be applied to the legal relations between Zacke and customers or consignors.
§32 Severability clause
(1) To the extent that any of the provisions included in these terms and conditions is inapplicable or invalid for statutory reasons, such provision shall be deemed as agreed between the parties which is as close as possible to the regulating content of the invalid or inapplicable provision.
(2) The invalidity of individual provisions does not affect the validity of the other provisions.
§33 Deliveries
(1) Any deliveries to Zacke with legal effectiveness are to be addressed exclusively to the address: 1070 Vienna, Mariahilferstrasse 112, Stairway 1, 2nd Floor.
(2) Deliveries to consignors or customers are to be addressed by Zacke to such address notified by the consignors or customers within the framework of the consignment or within the framework of conclusion of all other agreements towards Zacke. Deliveries to this address are deemed as effected in legally effective manner with the day of postal delivery until the consignor or the customer informs Zacke of a new address in writing by means of registered letter.
General Terms and Conditions of SZA Versteigerungen und Vertrieb GmbH [Zacke], Part II
§34 The Auction
SZA Versteigerungen und Vertrieb GmbH [Zacke] regularly conducts auctions which are carried out by an auctioneer. The auctioneer alone decides which bidder wins a lot through knockdown and when the knockdown occurs. The auctioneer may cancel a previous knockdown and continue to auction an object as long as the purchase price of the object has not been paid in full. The auctioneer may reject bids at will, auction lots out of sequence, split or merge lots, change the starting price, deviate from the usual bid increments, and exclude bidders from the auction without giving a reason. A knockdown is announced by the auctioneer by sounding the auction bell and is carried out electronically. Bidders can view the lots they have won on www.zacke.at.
§35 Bidding platforms
Bidders who participated in the auction via a bidding platform, such as Invaluable, LiveAuctioneers, 51BidLive, The Saleroom, or Drouot [Bidding Platform], can view the lots they have won on these Bidding Platforms. Zacke bears no responsibility whatsoever for technical issues which may arise on these Bidding Platforms or any consequences thereof. Any claims by a bidder that they ?did not bid,“ ?mis-clicked,“ or that the software of a Bidding Platform ?froze“ or ?crashed“ will be categorically denied and these bidders must pay for the lots they won in full. Every knockdown awarded on a Bidding Platform is legally binding and cannot be reversed by the bidder under any circumstances. Notwithstanding the above, it can happen that two different bidders are awarded the winning bid on the same auction lot due to a clerk error. In this case, Zacke will cancel one of the two winning bids within 8 days after the auction. It will be at the sole discretion of Zacke to decide which bid to cancel.
§36 The Offer
A sales offer in an auction [the Offer] consists of image, video, and text content published on www.zacke.at and is available for viewing the entire time before the auction. Any content published elsewhere, including for example on bidding platforms and in any kind of printed product, is principally not part of the Offer. Bidders are therefore strongly advised to closely examine the Offers listed on the two websites mentioned above before they participate in an auction.
§37 Sale cancellation
In an auction, a sale cancellation of any kind is not possible. All items are sold in the condition they are in at the time of the knockdown, and without any guarantees whatsoever. The only exception to this rule is the guarantee of authenticity [the Guarantee].
§38 The Guarantee
If an Offer is substantially inaccurate in its entirety or in part, the buyer may request Zacke [the Guarantee Claim] to promptly buy back the purchase object at a price covering all costs incurred by the buyer with the purchase. This Guarantee is valid under the following conditions:
Punctual payment of the purchase price
A Guarantee Claim can only be raised after the purchase price for the respective Offer was paid in full by the buyer and received by Zacke within 14 days after the auction [Payment Deadline]. If the purchase price has not been received by Zacke before the expiration of the Payment Deadline, the buyer cannot raise any Guarantee Claim against Zacke whatsoever. A late payment of the purchase price does not change this fact.
Due diligence
Zacke expects every bidder in an auction to closely examine the Offer before placing a bid [Due Diligence]. In terms of Due Diligence, a basic distinction is made between an Expert Opinions and findings of fact.
Expert Opinions
An Expert Opinion [the Expert Opinion] is the expression of a point of view that cannot be disproven beyond any doubt. Such an Expert Opinion may for example be the dating of an object, or the attribution to an artist, if it cannot be disproven by a universally accepted scientific method. Opposing Expert Opinions therefore cannot serve as grounds for a Guarantee Claim. Weighing differing Expert Opinions is excluded from the Guarantee Claim process, because every bidder can obtain an independent Expert Opinion about an Offer before the auction. Bidders who themselves are not proficient should therefore, before bidding, request guidance from independent experts of their choice.
Punctual raising of the Guarantee Claim
A Guarantee Claim must be raised within 45 days after the day of the auction [Claim Deadline]. An informal message, mentioning the mistakes or flaws in the offer, and delivered to Zacke via email before the Claim Deadline expires, shall suffice for raising a Claim. If a Claim is raised in time, the consignor of the respective purchase object will not be paid out by Zacke. Instead, their sales proceeds will be withheld until the Guarantee Claim is settled. Claims received by Zacke after the Claim Deadline has expired will be denied without exception.
Flaws are unapparent
An offer is only substantially inaccurate, if the mistakes or flaws present therein are not apparent, meaning for example that they are not clearly visible on an image or video [Visibility]. Guarantee Claims concerning visible mistakes or flaws will be categorically denied. Visibility is given if, for example, a crack on a porcelain bowl is not mentioned in the condition report but clearly visible on the photographs. Visibility is also given if, for example, the weight of an object is stated as “90 g” but the Offer clearly shows that the object was crafted from stone and thus at a height of 90 cm the correct weight must be 90 kg and not 90 g.
Flaws are relevant
Mistakes or flaws must impact the value of the purchase object in order to be relevant and for a Guarantee Claim to be justified. Minor mistakes or flaws which result in a value depreciation of less than 20 % will be settled by Zacke by issuing an appropriate purchase voucher.
Proven mistake or flaw
A proven mistake or flaw is a statement in the Offer which is factually wrong according to current scientific knowledge. This could for example be a demonstrably false description of the material, measurements, weight, condition, provenance, or age. The buyer has the obligation to furnish evidence in this case and the evidence must be provided within six months after raising a Guarantee Claim. Hence, the burden of proof lies entirely with the buyer.
§39 Date of payment
Principally, Zacke is always willing to negotiate with buyers on payment dates. A later payment date will only be approved if a down payment of at least 25 % of the purchase price is paid before the Payment Deadline. Another mandatory requirement is that the agreement on the date of payment is made before the auction.
§40 After the auction
Bidders must clarify all questions about the objects before the auction. After the auction, Zacke will not answer questions from bidders unless the purchase price has been paid in full. Of course, this does not apply to questions concerning shipping, insurance, taxes, customs, export documents and related questions. Particularly, Zacke will not send further images, videos, documents, or any other material related to auction lots to the winning bidder unless the purchase price has been paid in full.
§41 Non-payers
Bidders who do not settle their invoice before the Payment Deadline will be barred from all future auctions for life [Non-payer]. In exceptional cases, the lifelong ban may be reversed if both parties agree and the Non-payer pays a reinstatement fee [Re-Stocking Fee] of 30% of the gross purchase price. Criminal charges may be brought against any Non-payer.
§42 Re-Stocking Fee
Zacke will either sell objects bought by Non-payers to other bidders or return them to the consignor. In either case, the Non-payer owes Zacke a Re-Stocking Fee of 30% of the unpaid purchase price. This Re-Stocking Fee may be claimed by Zacke via a collection agency or by litigation. All costs associated with enforcing this claim must be paid by the Non-payer as well.
§43 International Non-Payer Wanted List
By bidding in an auction, Non-payers grant their irrevocable and unlimited permission that all personal information they have submitted to Zacke at registration, as well as all publicly available personal information about them, alltogether [the Information], will be published on an International Non-Payer Wanted List operated by Zacke at https://www.zacke.at/wall-of-shame/ [the Wanted List]. Furthermore, Non-payers consent that the Information is also shared with and published by other auction houses and Bidding Platforms.
§44 Deposit
Zacke may require payment of a deposit from any bidder before the auction [Deposit]. This Deposit serves as collateral for any future claims by Zacke against the bidder and may be paid in cash, via wire transfer or credit card, or by depositing goods. In every case, all deposits paid by Non-payers will be confiscated without compensation. This particularly applies to all goods stored with Zacke which are the property of the Non-payer, or the property of persons and businesses associated with the Non-payer.
§45 Partial delivery
When a bidder wins several objects in an auction, these will remain in the custody of Zacke until the bidder has paid the entire invoice. The delivery of individual objects [Partial Delivery], even if they have been paid for, is not possible. In exceptional cases, however, Zacke may agree to a Partial Delivery. In such cases, Zacke expressly reserves the right to reverse a previously given approval, without giving any reasons, even after payment for the Partial Delivery has been made by the buyer.
§46 Agents
Bidders who intend to buy objects in an auction by order of a third party, must notify Zacke of this before the auction and will be categorized as agents [Agent]. Agents are personally liable for the payment of the purchase price of all objects they have won at auction. An Agent who does not pay their invoice before the Payment Deadline will be categorized as a Non-payer. Deposits made by such Non-payer Agents will therefore be confiscated.
§47 Endangered species protection
All objects which fall under international regulations protection of endangered species (CITES) are marked in the Offer with an ?. Such objects can only be shipped within the European Union. Alternatively, such objects may be picked up by the buyer or a third party ordered by the buyer.
§48 Taxation
All objects are subject to the margin taxation scheme. All taxes for buyers are contained in the buyer’s premium. Excepted are objects marked in the Offer with an ?. Such objects are subject to standard taxation; the standard value-added tax of 13 % is added to the hammer price.
§49 Shipping Insurance
A shipping insurance at a rate given by Zacke (see §12 of the current Fee Tariff) is mandatory unless the buyer picks up their objects personally or through a third party ordered by them. In exceptional cases, Zacke may waive the mandatory shipping insurance. In such cases, the buyer expressly waives any claims in the case of transportation damages, theft, or loss of the shipped objects for any reason, either in part or in their entirety.
§50 Shipments that require customs declarations
In the case of shipments that require customs declarations in non-EU member states, Zacke will always state the value shown on the respective invoice. Exceptions to this rule are only possible if a court-certified expert determines that the actual value of an object is higher or lower than the purchase price paid by the buyer.
Fee tariff
of
Gallery Zacke Vienna, 1070 Vienna, Mariahilferstrasse 112/ Stiege 1 [Stairway 1]/ Stock 2 [2nd Floor]
1. Stock [1st floor], Austria
www.zacke.at
(valid since 31 May 2011)
All fees listed below are net, i.e. exclusive of the respectively applicable VAT rate.
1. Estimation fee: EUR 50.00 for each 30 minutes commenced, plus EUR 100.00 lump-sum fee for travel costs, in case of more than 3 exhibits lump-sum amounting to 2.5% of the estimated price plus EUR 100.00 lump-sum fee for travel costs.
2. Consignor fee, exclusively result-related without settlement of any costs: For commercial consignors 24% of the highest bid (auction) or purchase price (gallery) achieved. For private persons 40% up to 1.000 €, 33 1/3 % up to 10.000 €, upwards from 10.001 € 26% of the highest bid or purchase price achieved.
3. Consignor fee in case of handover of mixed lots: 12.5% of the purchase price achieved
4. Photo costs:
Colour 1/1 EUR 350.00
Colour 1/2 EUR 250.00
Colour 1/4 EUR 180.00
BW 1/1 EUR 150.00
BW 1/2 EUR 100.00
5. N/A
6. Purchaser premium: 22% of the highest bid or purchase price achieved
7. Fee in case of cash payment of proceeds: 0.833% of the proceeds
8. Withdrawal fee 30 days prior to auction: 50% of the estimate price.
9. Withdrawal fee prior to the end of free sale: 30% of the estimated price agreed. If no estimated price has been agreed, the fee amounts to 50% of the agreed minimum price (initial bid or limit)
10. Withdrawal fee prior to the end of sales exhibition: 30% of the estimated price agreed. If no estimated price has been agreed, the fee amounts to 50% of the agreed minimum price (initial bid or limit)
11. Withdrawal fee after the end of the sales exhibition and/or free sale for limited items: 4% of the agreed minimum price (initial bid or limit)
12. Transport insurance: 3% of the gross purchase price of the item
13. Interest: 7.5% p.A. (current account settlement)
14. Storage fee: 2% per commenced calendar month
15. Exhibition fee: 2% per commenced calendar month
16. Cancellation fee pursuant to §14 of the consignor contract: 15% of the agreed minimum price (initial bid or limit)
17. Packaging, handling and shipping lump-sum fee for the shipping of items within Austria with a weight of not more than 5 kg and a maximum dimension of not more than 50 cm (packaging, handling and shipping costs of all other items on request): EUR 20.00
18. Live bidding fees for third-party platforms: 3% of the hammer price for lot-tissimo, the saleroom and Auction FR. 5% of the hammer price for Invaluable, LiveAuctioneers, Epai Live, Lot-Art, Drouot, 51 Bid Live and ArtFox.
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