(Revised March 2015)
A. Conditions of Sale for Auction and Shop
B. Terms and Conditions for Obtaining a Valuation
– jointly referred to as : Terms and conditions –
595 Madison Ave New York, NY 10022, USA
Phone +1 212-899-1750
Auctionata Inc. is a wholly owned subsidiary of
Auctionata is a full service auction house which offers high-quality items for sale on the internet. The items are offered at live auction or direct sale via its Online Shop. All live auctions are transmitted in real time through streaming technology. Auctionata offers collectible items from the fields of art and antiques as well as sculptures, decorative art and design of the 20th century, jewelry, rugs, memorabilia, collector’s items, Asian artworks, tribal art, textiles, Islamic art, postcards, paintings, works on paper and graphic prints, numismatics, postage stamps, silver, porcelain, glass and ceramics, Contemporary Art and photography, rare wines and liquors, antique books, autographs, placards, vintage fashion, accessories, musical instruments, watches, vehicles, coins and many other luxury goods. Moreover, Auctionata offers valuations for fine art items and other luxury goods.
Integral to these Terms and Conditions shall be the Overview of Fees (in its most recent version) as well as the tabular listing of the increments specified by Auctionata.
The Terms and Conditions below apply for all purchases of goods at auction or via the Online Shop in which Auctionata, Inc. acts as the seller.
Please note that this website allows you to purchase goods from Auctionata, Inc., or Auctionata AG, its international parent company. Both organizations operate under separate Terms and Conditions.
Before any purchase via this website, please make certain that you review and accept the respective Terms and Conditions which apply for your purchase.
For all purchases of goods at auction or via the online shop in which Auctionata AG acts as the seller, theseterms and conditions apply.
The transaction details can be determined from information on the lot detail page.
Conditions of Sale
The following Conditions of Sale govern the terms upon which Auctionata, Inc. (“Auctionata”) and the Seller contract with the bidders and buyers. These conditions may be amended periodically by notices posted on our website (www.auctionata.com, unless otherwise indicated) or by oral announcements made during the sale, whether at auction or via the Online Shop. All prospective buyers should review these Conditions of Sale carefully before bidding at auction or making offers via the Online Shop. Auctionata may be referred to in these Conditions of Sale as “we”, “us”, and “our”; bidders and buyers may be referred to as “you” and “your”.
1.1 All property offered for sale (the “Property”) is offered and sold subject to: (a) these Conditions of Sale; (b) any additional notices and terms posted in other places on our website; and (c) supplements to these Conditions of Sale and additional notices and terms in other places, in each case as amended by any addendum or announcement we make prior to or during any sale of the Property.
1.2 Auctionata will offer the Property as agent for the Seller, unless otherwise indicated prior to or during the sale.
1.3 By bidding at auction or making an offer via the Online Shop, whether directly, through an agent, by written bid, by telephone bid or any other means permitted under these Conditions of Sale, bidders and buyers accept and agree to be bound by these Conditions of Sale, as may be amended or supplemented periodically.
1.4 These Conditions of Sale, as so amended or supplemented, contain all the terms on which Auctionata and the Seller contract with the buyer.
2. Descriptions and Condition of the Property
2.1 Unless otherwise indicated, Property is offered subject to the Limited Warranty as described in Section 12 below, unless the description is amended or supplemented, as provided in Section 1. All Property is sold “AS IS”, and we do not provide any guarantee with respect to the Property except as otherwise provided under the Limited Warranty.
2.2 Property is offered in the condition indicated at the time of sale on the following basis:
(a) You accept and agree that our knowledge in relation to any Property is dependent, in part, upon information provided to us by the Seller, and we are unable to carry out exhaustive due diligence on all Property beyond the standard customary in the industry. Notwithstanding the foregoing, we shall exercise reasonable care when making express statements about the Property.
(b) All lots are available for inspection upon request and we encourage you to inspect the Property in person before making an offer or bidding. We accept bids and offers on the basis that you have inspected the lot prior to the sale and have satisfied yourself with respect to the condition of the Property and the accuracy of its description.
(c) All statements we make with respect to the Property (whether oral or written, in any auction catalogue, Online Shop description, condition report, commentary or valuation, or elsewhere) are statements of opinion and are not to be relied upon as statements of fact. The opening bid for Property offered for sale at auction (“Starting Price”) and/or the listed sales price for Property offered for sale via the Online Shop (“Offering Price”) may not be relied on as a statement of the value of the Property or of any opinion of the value of the Property. We and the Seller shall not be liable to you or any other party for any difference between the Starting Price or Offering Price for any Property, and the actual sale price paid for the Property.
(d) Descriptions of the Property may refer to particular damage, defects, imperfections, or restoration. Such references are for guidance and information only. The absence of any such reference shall not imply that an item is free from particular characteristics or any other faults not expressly referred to in any description. All dimensions are approximate. Illustrations are for identification purposes only and should not be used as precise indications of size or to convey full information as to the actual condition of the Property. We and the Seller are not responsible in any way for errors and omissions in any descriptions, or in any supplemental material concerning the Property. Descriptions and statements concerning the Property are further subject to our Limited Liability, as described in Section 11.
3. Bids and Offers
3.1 Prospective Buyer Registration and Participation
Whether intending to purchase Property for sale at auction or via the Online Shop, you must register and provide identification prior to bidding at auction or making an offer in the Online Shop.
We have absolute discretion to refuse your participation in any sale of the Property. In addition, we have absolute discretion to reject any offer or bid that you make for any reason.
3.2 Prospective Buyer’s Liability
If you make a bid at auction or an offer in the Online Shop, you accept personal liability to pay the full Purchase Price as described in Section 4.1, including the buyer’s premium amount as detailed in the Overview of Fees available on our website (the “Buyer’s Premium”), and any applicable sales taxes, unless otherwise explicitly agreed in writing with you or other individual acting on behalf of an entity or other identified third party acceptable to us, and that we will only look to the principal for payment.
3.3 Absentee Bids at Auction
You may ask us to execute bids at auction on your behalf (“Absentee Bid”), which shall be subject to the following:
(a) We have sole discretion to accept or reject any request to execute an Absentee Bid, and we may cancel any such bid placed up until the winning bid is accepted. We will not accept unlimited Absentee Bids from any buyer.
(b) We must receive requests for an Absentee Bid at least 24 hours in advance of the auction.
(c) Arranging and executing an Absentee Bid is a free service that we provide to you. While we will exercise reasonable care in undertaking such activity, we do not accept liability for failing to execute any Absentee Bid, or for errors and omissions in connection with it.
(d) Absentee Bids are restricted to the Property and to the maximum bidding price for such Property that you specify in writing. The maximum bidding price is the maximum price you authorize us to bid, and if accepted as the winning bid, it will be included in the Purchase Price that you agree to pay for the Property. The maximum bidding price shall not be lower than the Starting Price and shall only constitute the winning bid price, excluding the applicable Buyer’s Premium, or applicable sales taxes. We shall charge for these additional costs and expenses separately. We will only bid up to the maximum bid price if there is another bidder. If no one else bids on the relevant Property, your bid will automatically be accepted at the Starting Price.
(e) In the event that we receive identical Absentee Bids, the first one that we receive will dictate precedence.
(f) If, despite having submitted an Absentee Bid, you wish to bid simultaneously in person (i.e., in the virtual auction room), or by telephone, for example, you must notify us in writing at least 24 hours before the commencement of the auction. In such case, we will treat the notification as a cancellation of the purchase order, which may be subject to a cancellation fee. Should you fail to notify us in accordance with this paragraph, we shall have the right to comply with the purchase order.
(g) If any Absentee Bid results in the winning bid, you agree to enter into a purchase agreement resulting from that bid
3.4 Telephone Bids at Auction
You may ask us to execute bids at auction on your behalf by telephone (“Telephone Bid”), which shall be subject to the following:
(a) Telephone Bidding is available only for lots whose Estimated Value is at least $1,000. We have sole discretion to accept or reject any request to execute a Telephone Bid, and we may cancel any Telephone Bid up until the winning bid is accepted.
(b) Arranging and execution of Telephone Bids is a free service that we provide to you. While we will exercise reasonable care in undertaking such activity, we do not accept liability for failing to execute a telephone bid, or for errors and omissions in connection with same.
(c) We must receive requests to bid by telephone at least 24 hours before the auction begins. You may cancel your telephone bid after it is placed; however, if you cancel less than 24 hours before the auction begins, or after the auction has begun, we may charge a cancellation fee. Any cancellation must be made in writing.
(d) Before the auction begins, we will attempt to contact you by telephone at the contact number you provide when you register. If we are unable to contact you after reasonable efforts to do so, we will execute your bid as if it was an Absentee Bid, and we will place bids up to the Starting Price. If no one else bids on the specified Property, your bid will automatically be accepted at the Starting Price.
(e) The winning bid, even if at the Starting Price, shall constitute the Purchase Price, excluding the Buyer’s Premium and applicable sales taxes. We shall charge for these additional costs and expenses separately.
(f) We reserve the right to require written confirmation of a successful bid from a telephone bidder immediately after the bid is accepted. Telephone Bids will be recorded, and by bidding by telephone, you consent to the recording of the conversation.
3.5 Employee Bidding
Employees of Auctionata may bid at live auction or submit an offer via the Online Shop by placing an Absentee Bid provided that they do not know the reserve when submitting their Absentee Bid and otherwise comply with our employee bidding procedures.
3.6 Reserves & Sales at Auction
(a) All Property offered at auction will be sold subject to a minimum sale price (“Reserve”). The designated Reserve for a lot may exceed the Starting Price, but will not exceed the Estimated Value of the Property as stated in the auction catalogue.
(b) Subject to our discretion and as otherwise described in these Conditions of Sale, the bidder who places the highest bid will be the buyer of that lot, and the striking of the auctioneer’s hammer marks the acceptance of the highest bid and the formation of a contract for sale between the Seller and buyer. If there are no bids received before or during the auction, we may offer the Property for sale via the Online Shop for a post-auction sale. Any such post-auction sale in the Online Shop shall incorporate these Conditions of Sale. Upon purchase, you shall assume full risk and responsibility for the Property as set forth in Clause 4.4 below.
(c) The final sale price for Property sold at auction (“Purchase Price”) as described in Section 4.1
3.7 Offering Price & Sales via the Online Shop
(a) The “Offering Price” for any Property offered for sale via the Online Shop is comprised of the following: Estimated Value, Buyer’s Premium, and any applicable sales taxes.
(b) You have the opportunity to submit to us a counteroffer to the Offering Price which we shall be entitled to accept or reject in our discretion, or as otherwise agreed by Auctionata and the Seller.
(c) The final sales price for Property sold via the Online Shop shall consist of the Offering Price, or the counteroffer that we accept.
3.8 Certain Discretionary Matters
(a) In addition to the discretion otherwise described in these Conditions of Sale, we have absolute discretion at any time to reject any offers or bids, advance the bidding, withdraw, group or ungroup any lot(s) of Property, cancel the sale, or re-offer and re-sell the Property (including after the fall of the hammer for Property bid at auction, or after we accept your offer to purchase Property in the Online Shop) if we believe there is or may be error or dispute, and we may take such other action we deem reasonably appropriate. We shall have no liability whatsoever for any such action taken by our employees conducting the sale of Property at auction or via the Online Shop.
(b) The individual with the highest offer or bid that we acknowledge will be the buyer. Notwithstanding the preceding sentence, in the case of error or dispute with respect to bidding, whether during or after the sale, we may determine the successful bidder. Should any dispute arise after the sale, our sales record is conclusive
4. Payment and Transfer of Title
4.1 Terms of Payment
Unless otherwise agreed by us, following the sale of Property sold at auction or via the Online Shop, but no later than ten (10) business days after the sale, you are required to pay us the ‘Purchase Price’ in full, which shall include the hammer (sale) price, the Buyer’s Premium, and any applicable taxes. You must confirm and provide us with your name, address, identification and any other information we request from you, including, but not limited to, applicable credit card information and details of the bank from which payment will be made.
4.2 Method of Payment
Payment shall be made to us by either check, wire transfer, or (for purchases of up to and including $30,000) by credit card or PayPal. For wire transfer, payment must be made according to the following details:
Commerzbank AG 225 Liberty Street
New York, NY 10281-1050
ABA routing: 026008044
For the Account of: Auctionata, Inc.
Account No.: 150112363700
4.3 Compensation of Third Parties
We reserve the right to pay from our compensation an introductory commission to one or more third parties for assisting in the sale of Property sold at auction and offered via the Online Shop.
4.4 Transfer of title
Title of ownership in any purchased Property will pass to you at the fall of the auctioneer’s hammer (if sold at auction) or once the price has been met if sold via the Online Shop. You then agree to pay the Purchase Price in full and cleared funds as set forth in this Section 4. We are not obligated to release Property to you until title has passed and you have provided appropriate identification. Any earlier release of the Property shall not affect the passing of title or your obligation to pay the Purchase Price.
5. Collection of Property
5.1 Release of Property
We will not release any Property to you until we have received full and cleared payment of the Purchase Price, any outstanding amount(s) you owe us, and you have satisfied such other terms as we in our sole discretion shall require, including, but not limited to, appropriate identification from you or your authorized representative. Subject to your satisfying all of the foregoing conditions, you shall be responsible for collecting the purchased Property within five (5) business days after Auctionata’s receipt of good, cleared funds, unless we otherwise agree in writing.
5.2 Assistance with Collection
We will, upon your request and at your expense, either provide packing, handling, insurance and shipping services or coordinate with shipping agents instructed by the buyer, to help facilitate such services for the purchased Property. Any such instruction, whether or not made at our recommendation, is entirely at your risk and responsibility, and we will not be liable for acts or omissions of third party packers and shippers.
5.3 Failure to Collect
If you fail to collect the purchased Property within five days after the date of the sale, even if we otherwise agree in writing that the Property may remain at our facility for longer than five days, we may charge storage fees with respect to the Property, as further described in the current Overview of Fees, which may be found on our website. We may also charge handling, insurance, and any other costs incurred with respect to purchased Property that is not collected within five days after the sale.
5.4 Resale of Uncollected Purchases
If purchased Property is paid for but not collected within 90 days of the sale, you authorize us, upon notice to you, to arrange a resale of the item, at auction or via the Online Shop, in the manner of our choice, with Estimated Values and Reserves to be set at our discretion. The proceeds of the sale will be applied to your account to cover any outstanding storage charges and other costs and expenses owed to us, and the remaining amount will be deemed abandoned by you unless you collect it within two (2) years after the date of the sale.
6. Export and Import Licenses, Permits
6.1 Unless we otherwise agree in writing, you must pay the Purchase Price in the required time-frame explained in Section 4, and you must collect the Property as explained in Section 5 regardless of any intention to obtain or delay in obtaining an export or import license or other permit for such Property.
6.2 If you are considering the export or import of purchased Property, you should familiarize yourself with relevant regulations of the countries concerned prior to making an offer or submitting a bid. It is solely your responsibility to comply with these laws and to obtain any necessary licenses or permits. Failure to obtain a license or permit, or delay in doing so, will not justify cancellation of the sale, or relieve you from your obligations under these Conditions of Sale, including to timely pay the Purchase Price and collect the purchased Property.
6.3 We may charge interest on any late payment, and storage charges for any Property not timely collected. We shall not be obliged to cancel a sale or refund any interest or other expenses you incur under circumstances where an export or import license or other permit is required.
7. Transfer of Risk
Risk and responsibility, including loss and damage liability, for Purchased Property passes to you on: (i) the date you collect the Property from us (or the date we deliver it to you, if we according to this Section 5, provide shipping services); or (ii) upon notification from you of your refusal of loss and damage liability from us, whichever is earliest. Until risk passes, we will compensate you for any loss or damage to the purchased Property up the limit of the Purchase Price paid, subject to our exclusions for loss or damage to the Property under our insurance policy. Neither we, nor our insurer, will be liable for any physical loss of or damage: (a) to picture frames or to glass covering prints, paintings, or other works, or for damage occurring in the course of any process undertaken by independent contractors employed with your consent; or (b) to the Property caused by: (i) climatic or atmospheric conditions; (ii) inherent conditions or defects; (iii) normal wear and tear; or (iv) circumstances beyond our control such as war, acts of terrorism, radioactive or other chemical contamination.
8. Non-Payment by Buyer
If you fail to make payment in full and cleared funds pursuant to Section 4 of these Conditions of Sale, we shall be entitled, in our absolute discretion, to exercise any or all of the following rights or remedies, in addition to asserting any other rights or remedies available to us in law or equity:
(a) cancel the sale, and: (i) resell the Property on terms we deem appropriate, at auction, via the Online Shop, or by private sale; or (ii) return the Property to the Seller;
(b) hold you liable for the total amount due and commence legal proceedings to recover the amount, together with interest, legal fees, and costs, to the fullest extent permitted by law;
(c) where you owe us several amounts with respect to several transactions, apply any amount paid to discharge what is owed for any particular transaction;
(d) set off the outstanding amount you still owe us against any amounts which we may owe you in any other transactions;
(e) pay the Seller the amounts due from you up to the net proceeds payable, in respect of the amount of your offer or bid for the Property (it being understood and you acknowledge that in this circumstance, we shall have all of the rights of the Seller, however arising, to pursue you for the amount);
(f) reject future bids and offers from you or render such bids and offers subject to payment of a deposit;
(g) charge interest at such rate as we shall reasonably decide;
(h) exercise all the rights and remedies of a person holding security in the purchased Property and in any additional property or money you own that is in or is coming into our possession (whether by pledge, security interest, or any other manner), to the fullest extent permitted by law, including, but not limited to, the Uniform Commercial Code. You shall be deemed to have granted such security interest to us and we may retain such property as collateral security for your obligations to us; and
(i) take such other action as we deem necessary or appropriate.
You acknowledge and agree that you will remain liable for any difference between the total amount originally due to us and the price obtained upon resale (if applicable), together with all costs, expenses, damages, legal fees, commissions, and premiums of whatever kind associated with all sales or otherwise arising from the default;
9.1 We shall have the right, but not the obligation, to cancel a sale without notice to you if:
(a) we reasonably believe that there is a material breach of the Seller’s representations and warranties, or of the Limited Warranty described under Section 12;
(b) where we believe the sale is or may be unlawful;
(c) we determine in our sole judgment that the sale of the Property has subjected or may subject us and/or the Seller to any liability to anyone else or may damage our reputation; or
(d) an adverse claim is made by a third party.
9.2 Upon notice of our election to cancel the sale, you shall promptly return the Property to us, and we will then refund the Purchase Price you paid. As described more fully in Section 12, the refund of the Purchase Price paid shall constitute your sole remedy and recourse against us and the Seller, and full limit of liability, with respect to such cancelled sale.
9.3 For purposes of this Section 9 and the terms throughout these Conditions of Sale, “cancel” shall include cancellation, rescission, and termination under the Uniform Commercial Code.
10. Data Collection and Privacy
11. Limited Liability
Our liability is subject to the following terms, and as may be described elsewhere in these Conditions of Sale:
(a) We agree to refund the Purchase Price in the circumstances explained in Section 12. In addition, and subject to the terms of this Section 11, the limit of liability for us and the Seller to you in connection with the sale of any Property shall be equal to the amount of the Purchase Price actually paid for the Property. Otherwise, we (including our parent company, subsidiaries, officers, employees or agents) and the Seller are not responsible for:
(i) the correctness of any statement of any kind concerning any Property, whether written or oral;
(ii) any other errors or omissions in descriptions concerning any Property, whether written or oral; or
(iii) any faults or defects in any Property.
(b) Except as stated in Section 12, we (including our parent company, subsidiaries, officers, employees, or agents), and the Seller make no representations, warranties, guarantees, or assume liability of any kind, whether express or implied, with respect to the Property (including, but not limited to, merchantability, fitness for a particular purpose, description, size, quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature or historical relevance, or as to whether the buyer acquires any copyrights or other such reproduction rights in the Property), and no statements regarding the Property shall be deemed such a warranty, representation, guarantee or assumption of liability.
(c) We shall not be liable for the timely and correct submission of offers or bids, including where technical problems may arise. We shall assume no liability whatsoever for the permanent availability of our website.
(d) Where technical problems prevent the continuation of a sale at auction or via the Online Shop, the following shall apply:
(i) If Property is not sold prior to the technical problem arising, then the Property will be offered for sale at a later point in time that we will determine and specify on our website at www.auctionata.com (or on any other website we operate) at least one (1) week in advance of the date which the Property will be re-offered for sale at auction or via the Online Shop; and
(ii) All winning bids that were made before the arising of the technical problems shall remain valid.
(e) We offer no guarantees that the Online Shop will be permanently available.
(f) We accept no liability should our website be: (i) limited in its functionality or operation for any reason including our need to perform maintenance work or technical security measures; and (ii) destroyed as a result of unforeseen events beyond our control, including but not limited to strikes, war, armed conflict, acts of terrorism, acts of god, system malfunction or other external factors. Auctionata shall not be liable for loss or damage incurred through the lack of usability or inaccessibility of our website.
(g) We accept no liability for the unauthorized access to our website and to any personal data collected and processed on it as a result thereof.
12. Limited Warranty
Subject to the exclusions and limitations set forth in this Section, we will warrant the authorship, period, culture or origin (collectively referred to as the “Authorship”) of Property offered for sale at auction and via the Online Shop for a period of 25 years from the date of the sale, as amended by oral or written notices and announcements we make (the “Limited Warranty”), as follows:
(a) We warrant the Authorship only to the original buyer of record (i.e. the registered successful purchaser) of any Property, and the original buyer must have remained the owner of the Property without disposing of any interest in it to any third party.
(b) This Limited Warranty is not assignable and does not extend to:
(i) subsequent owners of the Property, including purchasers or recipients of the Property by way of gift from the original buyer, heirs, successors, beneficiaries and assigns;
(ii) Property where the description in the Online Shop or auction catalogue states that there is a conflict of opinion about the Authorship of Property;
(iii) Property where our attribution of Authorship was on the date of sale consistent with the generally accepted opinions of specialists, scholars, or other experts;
(iv) Property where the description and identification of the Property in our Online Shop or in the auction catalogue is proved inaccurate by means of scientific methods or tests not generally accepted for use at any time during which we offered the Property for sale, or which at such time we deemed those means and tests to be unreasonably expensive or impractical, or to use them would likely in our reasonable opinion have caused damage or loss in the value of the Property; or
(v) there is no material decrease of the Property from its value had the circumstances in the previous subparagraph (iv) not occurred and the Property would have otherwise been accurately described and identified.
(c) In any claim for breach of this Limited Warranty, we reserve the right, as a condition to cancelling any sale under this Limited Warranty, to require you to provide to us, at your expense, the written opinions of two (2) recognized experts that we approve in advance. We shall not be bound by any expert report produced by you and we reserve the right to consult our own experts at our expense. If we agree to cancel a sale under this Limited Warranty, we shall refund to you the reasonable costs charged by the pre-approved experts that you commissioned.
(d) Subject to the exclusions set forth in paragraph (a) and (b) above, you may bring a claim for breach of this Limited Warranty provided that: (i) you have notified us in writing within three (3) months of receiving any information which causes you to question the Authorship of the Property, specifying the sale in which the Property was sold and corresponding lot number and the reasons why the Authorship of the Property is being questioned; (ii) you return the Property in the same condition as it was at the time of its sale; and
(iii) you are able to transfer good and marketable title in the Property, free and clear of all liens, claims and encumbrances by third parties arising after the date you purchased the Property.
(d) You understand and agree that the sole and exclusive remedy for any breach of this Limited Warranty against us and the Seller, in place of any other remedy which might be available to you as a matter of law, is the cancellation of the sale and refund of the original Purchase Price paid. Accordingly, neither we nor the Seller shall be liable for loss or damage beyond the remedy expressly provided by this Limited Warranty, whether such loss or damage is characterized as direct, indirect, special, incidental or consequential, or for the payment of interest on the original Purchase Price
The copyright in all images, illustrations and written material produced by or for Auctionata relating to any Property, including the content in auction catalogues or in the Online Shop is and shall remain at all times the intellectual property of Auctionata and shall not be used by you, nor by anyone else without our prior written consent. We and the Seller make no representations or warranties that the buyer of any Property will acquire any copyright or other reproduction rights in it.
All notices shall be in writing. Notices to us shall be in to the address indicated on the first page of these Conditions of Sale. Notices to you shall be addressed to the last address you provided to us. Notice by mail shall be deemed to have been given five (5) days after mailing to such address, or if by electronic mail or facsimile, such notice shall be deemed given the date of transmission.
These Conditions of Sale may not be assigned by any buyer without our prior written consent, and are voidable at our discretion, but they shall be binding upon the buyer’s heirs, executors, beneficiaries, successors and assigns.
14.3 Severability and Non-Waiver
(a) If any provision or any portion of any provision of these Conditions of Sale is construed to be illegal, invalid, or unenforceable, the remaining portion of such provision and all other provisions of these Conditions of Sale shall continue in full force and effect.
(b) The failure or delay of any party to enforce any portion of these Conditions of Sale, or to exercise any right or remedy herein shall not act as a waiver or release thereof in whole or in part.
14.4 Governing Law and Jurisdiction
These Conditions of Sale, and all matters arising out of or in connection with them, including but not limited to, the rights and obligations of the parties with respect to these Conditions of Sale, the conduct of the sale of Property, whether at auction or via the Online Shop, and any matters related to the any of the foregoing and to matters of validity, interpretation, legal effect, and performance shall be governed by and construed in accordance with, the laws of the State of New York, without regard or reference to its conflicts of law principles. By submitting an offer in the Online Shop or bidding at auction, whether directly, or by agent, by written bid, telephone, absentee bid, or other means, any person making an offer, bidding or purchasing shall be deemed to have submitted, for the benefit of Auctionata, to the exclusive jurisdiction and venue of the state or federal courts located in New York County, New York. All parties agree, however, that we shall retain the right to bring proceedings in a court other than the state and federal courts sitting in New York County, New York. All Sellers and buyers irrevocably consent to service of process or any other documents in connection with proceedings in any court by electronic mail, facsimile transmission, personal service, delivery by mail or in any other manner permitted by New York, at the last address of the prospective buyer or Seller known to us.
Any controversy or claim arising out of or relating to these Conditions of Sale shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A sole arbitrator shall conduct the arbitration in New York, New York. The arbitration award shall be final and binding on the Parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be confidential, except to the extent necessary to enforce a judgment or to comply with a court order.
15. Amendments to the terms and conditions and final provisions
15.1 Auctionata reserves the right to amend the provisions of these Terms and Conditions with future effect at any time without citing reasons. Auctionata will announce such amendments on its website or by email.
15.2 Third parties may enter into this agreement in place of Auctionata and wholly or partially assume the resulting rights and obligations subject to six weeks’ prior notice. The customer hereby consents to this in advance.
15.3 The place of performance for all of Auctionata’s performance obligations that are derived from the contractual relationships between the contractual parties shall be the commercial residence of Auctionata, Inc.in New York, NY.
15.4 The legal venue for all claims arising from the disputes from the contractual relationships between the contractual parties shall be – insofar as the contractual parties are business persons, legal persons under public law or special foundations under public law – the commercial residence of Auctionata, Inc. in New York, NY. However, Auctionata may also alternatively take legal action against the contractual partner at his general or any other permissible legal venue. This shall not be valid if mandatory legal directives prescribe another legal venue.
15.5 US law shall apply exclusively for the contractual agreement and the resulting claims, regardless of the type and against whom they are asserted. This shall also apply to transactions against national borders.
15.6 Should one or more of the provisions of the Terms and Conditions be or become wholly or partly ineffective or should the Terms and Conditions be found to contain omissions, the validity of the remaining provisions shall remain unaffected. The parties undertake, in such cases, to replace the wholly or partly ineffective provision with one which is effective and whose economic purpose most closely reflects that of the ineffective provision.
B. Terms and conditions for obtaining a valuation
1. General provisions
The following provisions shall apply to every valuation request, free valuation, valuation in return for a fee and other act/service in connection with a valuation through our website (www.auctionata.com, unless otherwise indicated). Auctionata will treat every valuation request with the utmost discretion. Auctionata reserves the right to make use of third parties services for contractual fulfillment.
2. Conclusion of the agreement; number of free valuations
2.1 A free valuation can be requested using our online form or by sending an email to firstname.lastname@example.org. Before submitting the valuation request, in both cases, the customer must enter a brief description along with photographs and the customer’s contact details, and must agree to these Terms and Conditions and the privacy statement.
2.2 Once the valuation request has been received, the customer will receive an email in which Auctionata confirms or rejects the request for a valuation. If Auctionata accepts the order, an agreement has been formed concerning the preparation of a valuation at no cost to you. Auctionata reserves the right to reject requests for a valuation, and under no circumstances shall Auctionata be obliged to accept a request for valuation.
2.3 Customers can have up to five (5) items valued free of charge within a given calendar year. After the fifth item has been valued, the customer will receive an offer for a valuation in return for a fee by email from Auctionata for any additional items. The interested party may accept this offer by fax, email or letter. Auctionata reserves the right to request this valuation fee at its discretion.
2.4 The valuation fee, if applicable, shall be waived if the valued items are consigned to Auctionata for sale within 12 months of the date of valuation. In this case, the costs of each valuation in return for remuneration will be refunded to the customer.
2.5 Submitting a valuation request or entering into an agreement concerning the preparation of a valuation shall not create a contractual obligation for the customer to enter into a subsequent commission-based transaction with Auctionata; the aforesaid shall also apply in cases of a fee-based valuation.
3. Information and photos for the valuation
As a general rule, the experts will prepare the valuation based upon the information and photographs submitted by the customer. In the event that Auctionata requires additional information and/or additional photographs in order to make a valuation, Auctionata will contact the customer and request the information and/or photos directly. If the customer rejects Auctionata’s request, Auctionata shall be entitled to reject the valuation request in its entirety and will be under no obligation to provide a valuation and/or other opinion. In the event that Auctionata considers it necessary to inspect the item in person, Auctionata will contact the customer to arrange an inspection or to arrange for the item to be sent to Auctionata. If the customer does not consent to an inspection being carried out by Auctionata, Auctionata shall be entitled to reject the valuation request.
4. Valuation number, status query and notification of the valuation
4.1 Auctionata will allocate a valuation number to each valuation request. In the event of a free of charge valuation, the customer will be sent this number by email together with the order confirmation. In the event of a valuation in return for remuneration, the customer will receive the valuation number in the email containing the offer to conclude an agreement. He or she can use this valuation number to query the status of the valuation by replying to the email. The customer will then receive notification of the status of the valuation request by email from Auctionata.
4.2 Finally, the customer will receive a link to the completed valuation on Auctionata’s website. When the customer has received the valuation, he or she can decide whether he or she wishes to sell the item through Auctionata (“commission-based transaction”). No right to enter into a commission-based transaction shall exist, however.
5. Object of service and warranty
5.1 A valuation prepared by Auctionata shall include a estimation of value and brief details of the item (e.g. date, material, size, artist etc.). Auctionata will make all valuations to the best of its knowledge and ability based upon the then-available information. Unless it has been otherwise expressly agreed otherwise in writing (including by email), the valuations prepared for customers shall constitute “remote valuations”. In other words, Auctionata has prepared the description without having inspected the items personally. It follows from this that the valuation constitutes a conditional and provisional estimate subject to change should Auctionata conduct a first hand valuation of the items, and that Auctionata does not, therefore, supply any definitive information about the condition.
5.2 For this reason, every item will be inspected again closely by Auctionata in the event of consignment for sale by auction or via the Online Shop. This inspection may lead to a subsequent alteration of the previously determined provisional valuation. The consignor will be notified of this as soon as practicable.
5.3 We therefore wish to expressly inform you that valuations provided by Auctionata do not constitute a formal appraisal and are not intended to be used as such. The content of a valuation, (including but not limited to a remote valuation) is used by the customer for informational purposes only. Auctionata shall assume no warranty for the valuation service(s) provided, and makes no representation or warranty that the valuation will satisfy any third party or governmental requirements for any particular purpose.
6. Remuneration, Maturity and Terms of payment
6.1 The remuneration for obtaining a fee-based valuation is contingent upon the current Overview of Fees. The amount of remuneration depends on whether a “remote valuation” or a valuation through direct inspection is requested.
6.2 The amount due for the fee-based valuation is to be paid in advance upon receipt of the invoice. Payment on delivery is excluded. The customer may make payment by bank transfer, PayPal or credit card.
6.3 A customer shall enter into payment default if he has not rendered payment within ten (10) days after the payment due date and receipt of an invoice; the relevant date is the date that Auctionata receives the payment into its account. In the event of payment default, interest shall accrue during the payment default period in the amount of 5% points above the respectively valid base lending rate. The interest shall be calculated per year and charged to the current account.
Auctionata’s limit of liability for any valuation in whatsoever format shall be reasonable and foreseeable, and shall in no event exceed the value of the property submitted to valuation.
8. Revocation Instruction
Right to revoke
You have the right to revoke your request within fourteen (14) days for whatever reason following submission of the property for valuation (the “Revocation Period”). To exercise this right during the Revocation Period, you must inform us of your decision in writing. A model revocation form is offered for your information.
Should you choose to revoke during the Revocation Period, we will reimburse to you any payments received from you, including the reasonable costs of delivery.
We will make the reimbursement with fourteen (14) days following your notification using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise, less any expenses already occurred on our behalf.
The agreement concerning the preparation of any free valuation may be terminated by either party in writing (including by email) at any time without giving reasons. In the case of valuations in return for remuneration, the customer may terminate the agreement without giving reasons at any time until the valuation is complete. Once the valuation is complete, Auctionata shall be entitled to demand the agreed remuneration for the services provided with regard to the valuation(s) not yet complete.
10. Data protection
11. Amendments to the terms and conditions and final provisions
11.1 Auctionata reserves the right to amend the provisions of these Terms and Conditions with future effect at any time without citing reasons. Auctionata will announce such amendments on its website or by email.
11.2 Third parties may enter into this agreement in place of Auctionata and wholly or partially assume the resulting rights and obligations subject to a six (6) week notice period. The customer hereby consents to this in advance.
11.3 The place of performance for all of Auctionata’s performance obligations that are derived from the contractual relationships between the contractual parties shall be the commercial residence of Auctionata, Inc. in New York, NY.
11.4 The legal venue for all claims arising from the disputes from the contractual relationships between the contractual parties shall be the commercial residence of Auctionata, Inc. in New York, NY. Auctionata may also alternatively take legal action against the contractual partner at his general or any other permissible legal venue.
11.5 This agreement, and the Terms and Conditions thereof, shall be governed by and under the laws of the State of New York and the United States, regardless of the type and against whom they are asserted.
11.6 Should one or more of the provisions of the Terms and Conditions be or become wholly or partly ineffective or should the Terms and Conditions be found to contain omissions, the validity of the remaining provisions shall remain unaffected. The parties undertake, in such cases, to replace the wholly or partly ineffective provision with one which is effective and whose economic purpose most closely reflects that of the ineffective provision
For your convenience, here is a guide to some of the terms you will see elsewhere on our website. Some terms that are formally defined or referenced in Auctionata’s agreements and forms are also defined below. To the extent that these definitions differ, the definitions found in the agreements or forms shall control.
Advances to Consignors – A loan Auctionata may give to the consignor once he/she delivers Property to Auctionata’s custody, with the intent that the Property be sold.
Bids by Telephone/Telephone Bids at Auction – A bid, or an offer to purchase Property at auction, placed via telephone. In order to bid telephonically, a prospective buyer must notify Auctionata in writing that he/she would like to bid by telephone during the auction. Auctionata will call the prospective buyer at the telephone number he/she provides to allow for telephonic bidding. If the prospective buyer wishes to place a bid, he/she should place it with Auctionata’s representative on the call. Telephone bidders may place repeated bids in response to other real-time bids during the auction.
Buyer’s Premium – An additional sum payable calculated based upon the Hammer Price, or the winning bid amount, that the buyer must pay at auction as stated in the Overview of Fees. This sum is paid by the buyer as compensation to Auctionata.
Consignment List – The written list identifying Property that is consigned for sale. This list is attached to the Consignment Agreement.
Estimated Value – A valuation of the items to be auctioned or sold via the Online Shop. The valuation is based on the professional opinion of Auctionata’s personnel and represents an amount of money that might be obtained during the auction assuming a sufficient number of bidders partake in the auction. Auctionata does not guarantee that the estimated value will be obtained.
Hall Bidder– A prospective buyer physically present at a live auction who places a bid.
Hammer Price– The price of Property to be paid by the winning bidder, established when the auctioneer hits the gavel or hammer on the table, concluding the bidding on a lot.
Offering Price – The price for Property listed for sale on the Online Shop, which is comprised of the following: Estimated Value, plus Buyer’s Premium. Sales tax, if applicable, is also charged.
Online Shop – A shop that Auctionata maintains on its website, which lists items for sale that can be purchased immediately at stated prices. In some cases, customers may propose a lower price as a counteroffer. The consignor reserves the right to accept or reject this counteroffer. Until an offer is accepted, the article will remain in the Online Shop.
Payment Default Interest – The interest charged when a late payment is made to Auctionata. Payments to Auctionata are due five (5) days after the purchase, unless otherwise agreed in writing.
Post-Auction Sale – A sale that occurs after the auction date, if bids for the Property were not received at or above the Reserve by the end of the auction date. If no bids for the Property are received at or above the Reserve by the end of the auction date, then Auctionata can sell the Property via the Online Shop for a period of ten (10) business days after the action date.
Protection against Loss and Damage – The portion of the Purchase Price that is charged to the buyer to cover any damage or loss during transit. Auctionata charges a flat rate of 2.5% to purchase to cover Property against any loss or damage during transit.
Purchase Price – The aggregate of the Hammer Price plus Buyer’s Premium, and applicable sales taxes.
Resale Royalty Right – A fee payable to a visual artist by the consignor on a sale of the artist’s work. The law of certain states and countries provides for this right and the obligation of sellers to pay this fee.
Reserve - A confidential minimum price below which the Property may not be sold. All Property offered at auction shall be sold subject to a Reserve, unless otherwise indicated prior to the sale.
Seller’s Commission – A portion of the sales proceeds that Auctionata receives for the rendering of services to the seller in the sale of the Property. This portion of the price is calculated as follows: (i) for Property sold at auction, the Seller’s Commission shall amount to 20% of the Hammer Price; and (ii) for Property sold via the Online Shop, the Seller’s Commission shall amount to 20% of the Offering Price.
Starting Price – The first price at which bids will be recognized for Property offered for sale at auction. The Starting Price for the Property is generally 50% of the Estimated Value. Auctionata can also set the Starting Price for any Property at more or less than 50% of the Estimated Value.
Storage Fees – A fee charged to the buyer if he/she has not made payment within ten (10) days of the due date. This fee is charged in order to store the Property until payment is made. If the buyer has not rendered payment within ten (10) days of the due date, a Storage Fee will be charged at a rate of 2% of the sales price, per lot, per month. Property which is not collected at the designated time will also be subject to this fee.
Valuation Fee – The fee charged for determining the Estimated Value of Property. If a fee is to be charged, Auctionata will notify a prospective consignor of the charges before performing the valuation.
Withdrawal Fee – The fee charged for the removal or withdrawal of items for sale or auction by the consignor, once a consignment agreement has been executed with Auctionata.
Withdrawal Order – The written notice the Consignor provides Auctionata if he/she wishes to withdraw Property prior to the beginning of the auction or prior to Auctionata’s acceptance of an offer via the Online Shop. Notice must identify the Property and its corresponding item number stated on the Consignment List.
[Written] Absentee Bids – A method that allows a prospective buyer to participate in the bidding process without being physically present. These bids are subject to a number of conditions imposed by Auctionata.
(revised March 2015)
PDF version of the Terms and Conditions for downloading and printing