TERMS & CONDITIONS OF CONSIGNMENT - THE CONSIGNMENT OF GOODS BETWEEN CONSIGNOR AND ORIENTAL ART AUCTIONS
The present document comprises the Terms & Conditions of Consignment between you and Oriental Art Auctions and is applicable to the present and to each subsequent consignment terminating upon expiry at the end of the calendar year or upon the issue of a new version made available to you. Please read this document carefully, in view of the fact that rights and obligations arise as a result of this Agreement.
1.1 The present Agreement containing the General Terms & Conditions of Business is applicable to all parts of the relationship between Oriental Art Auctions B.V., hereinafter referred to as 'Oriental Art Auctions" and the Consignor/Seller, hereinafter referred to as "the Consignor", which include a particular purchase, sale, intermediary services, appraisals, evaluations,
estimates, cataloguing, and custody, unless expressly agreed otherwise.
1.2 Any departure from the present General Conditions ls only possible if and insofar as expressly agreed in writing by Oriental Art Auctions.
2. Commission contract
2.1 The Consignor hereby instructs Oriental Art Auctions to examine, appraise and sell at auction the movable property brought in by Consignor and taken delivery of by a representative of Oriental Art Auctions (hereinafter also referred to as: ‘the Items').
2.2 Oriental Art Auctions are hereby authorized by the Consignor to sell the Items via Oriental Art Auctions under the auction conditions to be set by Oriental Art Auctions, irrespective of whether said authorisation regards all or, alternatively merely a few pieces. Consignor and Oriental Art Auctions may mutually agree upon setting a minimum price (reserve) for each consigned Item.
2.3 Taking delivery of Items, however, does not obligate Oriental Art Auctions to sell or to offer said items for sale at auction. ln the event that Oriental Art Auctions is not willing to enter the Items into auction, the Consignor will be informed by Oriental Art Auctions within four weeks subsequent to any such decision.
3. Rights and obligations on the part of the Consignor
3.1 The Consignor shall provide proof of identity at the request of Oriental Art Auctions.
3.2 The Consignor warrants that in his/her capacity as true owner or by means of proper authorisation he is authorised to offer the Items for sale at auction and hereby indemnifies and holds Oriental Art Auctions harmless against any and all claims from a third party in relation thereto.
3.3 The Consignor at the request of Oriental Art Auctions is obliged to provide Oriental Art Auctions with information on and substantiated proof of provenance and origin of the Items. The Consignor is liable for any loss/damage in case of information which is inaccurate or misleading and/or in case of any other circumstances attributable to the Consignor and hereby indemnifies and holds Oriental Art Auctions harmless against any and all claims from a third party in relation thereto.
3.4 The Consignor duly declares that sale at auction of the Items is not obstructed by any national or international statutory provisions.
3.5 The Consignor is not allowed to bid on any Items brought in by him unless otherwise agreed in writing with Oriental Art Auctions.
3.6 The rights and obligations by virtue of the present General Terms and Conditions belong exclusively to the Consignor and cannot be transferred by Consignor to a third party.
4. The rights of Oriental Art Auctions
4.1 The inclusion of Items in an auction sale or the exclusion thereof, similarly any (oral) announcement in respect of an Item in the Sale Catalogue or in a brochure, is at the sole discretion of the Oriental Art Auctions, who reserve the right to consult or rely on any expert without accepting any responsibility in connection therewith.
4.2 Oriental Art Auctions reserve the right to determine in which of their sales an Item shall be put up for auction.
4.3 In the event that Oriental Art Auctions are instructed to clear the complete contents of a dwelling or warehouse, they reserve the right to exclude Items from said clearance and also to remove or dispose of any such Items which in their opinion are not suitable for auction or if possible, to convert said Items into cash by other means.
4.4 Consignor duly declares that Oriental Art Auctions are authorized to photograph, illustrate or otherwise make visual representations of all the Items offered for sale and to copy or
cause said Items to be copied in any way whatsoever, both prior and subsequent to the sale, and shall observe any statutory regulations applicable thereto. Oriental Art Auctions retain the copyright in all such visual representations for use at their discretion.
5. Withdrawal on the part of Consignor
5.1 Once an Item has been entered into an auction, it can only be withdrawn by the Consignor following payment of 30% of the agreed reserve, or of a lesser amount if in the opinion of Oriental Art Auctions this is reasonable, or in the absence of a reserve price, payment of 30% or of a lesser amount of the expected proceeds at auction as estimated by Oriental Art Auctions plus all incurred costs, if any.
5.2 In the event that the Consignor is not satisfied with the estimate as set out in 5.1, he/she can request a re/estimation at his/her own expense, to be performed by three experts who are approved Registered Brokers/ or Registered Broker-Assessors and whose area of specialisation is that of the Item or alternatively, to be performed by certified appraisers or brokers, one of whom to be appointed by Oriental Art Auctions, one of whom by the Consignor, and the third to be nominated jointly by the two already appointed. Should the re-estimation result in a different value, said different value shall be binding upon Oriental Art Auctions and applicable to the Consignor in accordance with the applicability of the present Clause.
In case of sale of the Items at auction, the commission payable to Oriental Art Auctions amounts to a percentage of the price achieved at the sale agreed prior to the sale.
7. Obligation to take back on the part of Oriental Art Auctions
7.1 The Consignor acknowledges that he/she is familiar and agrees with the General Conditions of Oriental Art Auctions, applicable to Oriental Art Auctions and Buyer in respect of a purchase at auction of movable property, of his willingness to do the following:
'Unless certain items in the catalogue are expressly excluded - except for a number of cases mentioned in the General Conditions of Sale applicable to the purchase of movable property
at auction - Oriental Art Auctions may be willing to set aside the sale of a Lot at auction and to refund an amount corresponding to the original Purchase Price and auction costs, in the event that the Seller within a period of three weeks subsequent to the sale has established to the satisfaction of Oriental Art Auctions that the Lot sold at auction has such serious hidden faults or that the description given is shown to be so erroneous, that had the Buyer been aware of said faults or had there been an accurate description at the fall of the hammer, said Buyer would have decided not to proceed with the purchase or would have made the purchase only at a considerably lower price:.
7.2 The Consignor shall grant Oriental Art Auctions an irrevocable authorisation to set aside the sale in consideration for a refund of the Purchase Price and auctions costs. Oriental Art Auctions has sole discretion to determine whether the circumstances are applicable in any such case. By reason of the setting aside of the sale, the Item is considered to be unsold within the meaning of Clause 11 of the present contractual Terms & Conditions
8. Payment to Consignor
8.1 Oriental Art Auctions shall in the name of Oriental Art Auctions ensure payment to the Consignor of the proceeds from the sale less all fees and charges to be borne by the Consignor, such as transport costs, restoration costs, commission fees, vetting costs, insurance premiums, if applicable, and any other costs agreed in advance as well as VAT [BTW]. hereinafter referred to as: •[the] Compensation', providing that Oriental Art Auctions has received from the Buyer the full Purchase Price, and providing that the Buyer has not asserted the obligation on the part of Oriental Art Auctions to set aside the sale within the meaning of Clause 7 of the present Agreement, which assertion is acknowledged by the auctioneer and provided that no cancellation of the sale has occurred within the meaning of Clause 9 of the present contractual Terms & Conditions.
8.2 Payment of The Compensation ls normally is effected within 30 days following a sale. unless a written notice as set out in Clause 7 of the present Conditions is received from the Buyer, or a setting aside of the sale within the meaning of Clause 9 of the present Agreement has occurred.
8.3 Invocation of the so-called margin scheme can only be made in the event that prior to the sale all the necessary conditions have been met, including inter alia the declaration of purchase for VAT purposes (inkoopverklaring): the above at the absolute discretion of Oriental Art Auctions.
9. Consequences cancellation by Buyer
In the case of "a setting aside' as set out in Clause 7 of the present Terms & Conditions, or a cancellation of the Purchase agreement with the Buyer for any other reason, then Oriental Art Auctions reserves the right to claim back any Compensation already paid to the Consignor as well as any other loss/damage and costs incurred by Oriental Art Auctions as a consequence of said setting aside, including interest charges and judicial and extrajudicial costs.
10. Consequences of setting aside by Oriental Art Auctions
10.1 The Consignor is familiar with the fact that Oriental Art Auctions, in the Conditions of Sale (being the General Terms & Conditions of Oriental Art Auctions and the Buyer in respect of a purchase at auction of movable property), reserves the right to set aside the Purchase agreement in the event that the Buyer shall exceed the term for payment.
10.2 The Consignor expressly acknowledges and agrees that Oriental Art Auctions have the right to recover any loss/damage and costs against the Buyer in case of the occurrence of a situation as set out in 10.1. Also the Consignor expressly acknowledges and agrees that Oriental Art Auctions have the right to claim specific performance when the Buyer has failed to comply with the period for payment, or alternatively, to proceed to set aside the sale, or alternatively, first to file a claim against the Buyer for specific performance which if unsuccessful, then to take steps to set aside the sale: the above at the discretion of Oriental Art Auctions.
11. Unsold items
11.1 Oriental Art Auctions are irrevocably authorized but never obligated to offer Items for sale at a later auction, hereinafter referred to as: “to resell", or alternatively, to sell said Items within a period of ten days after a particular auction. Any such post-auction sale (“aftersale”) can only take place at a price that is at least the equivalent of the Purchase price less all costs to be borne by the Consignor to which the Consignor would have been entitled if the Item had sold for the reserve set at auction.
11.2 In the event of such an aftersale, the rights and obligations of the Consignor and Oriental Art Auctions by virtue of the present Agreement shall be equally binding and apply in full as if the Item had been sold at the particular auction.
11.3 Accordingly, the provisions set out in the present Agreement shall apply in full to any such resale or aftersale.
12. Transport/storage insurance Items
12.1 All packaging materials in respect of the Items consigned to the auction sale may be removed or disposed of by Oriental Art Auctions unless expressly agreed otherwise by Oriental Art Auctions and the Consignor.
12.2 All the Items consigned to Oriental Art Auctions are insured for the value stated on the receipt, or alternatively for an appropriate value determined at the sole discretion of Oriental Art Auctions. against fire. theft, loss and damage provided that said Items are kept in the offices of Oriental Art Auctions or in other storage facilities chosen by Oriental Art Auctions. The Consignor is entitled to claim a receipt for the Items consigned to Oriental Art Auctions, which receipt indicates the value represented by the Items at the moment of consignment according to a preliminary estimate given by Oriental Art Auctions.
12.3 Oriental Art Auctions reserves the right to take measures for storing with a third party Items sent or brought to auction, and to charge the Consignor for any such costs in relation thereto.
12.4 Items which have been sent or brought in to Oriental Art Auctions and which have not been accepted for auction and which are not stored for [temporary] safekeeping, shall at the risk and expense of the Sender be returned to the Sender wholly at his own cost.
13. Liability of Oriental Art Auctions
13.1 Oriental Art Auctions accept no liability whatsoever for any damage to frames of paintings, or other works of ort, nor to any parts thereof such as glass coverings, passe-partouts, etc, except in case of damage caused wilfully or by gross negligence on the part of Oriental Art Auctions and/or his/her employees or representatives.
13.2 In no event shall Oriental Art Auctions be liable for any damage/loss caused by interruption to business, consequential damage/loss, damage/loss of property and/or indirect damage.
13.3 Furthermore, Oriental Art Auctions cannot be held liable for any accident or any form of personal injury suffered on or in the vicinity of the premises or surrounding areas in use for consignment, storing or viewing, for holding auctions or in use for picking up the goods sold, except in case of damage caused wilfully or by gross negligence on the part of Oriental Art Auctions and/or his/her employees or representatives and/or except insofar as such accident/personal injury is covered by the insurance of Oriental Art Auctions.
13.4 Entering the premises or surrounding areas is entirely at your own risk.
14, Other rights and obligations on the part of the Consignor/natural person (not acting in the course of his/her trade/profession)/long distance services
14.1 In the event that an agreement is entered into between Oriental Art Auctions and the Consignor/natural person who is not acting in the course of his/her trade or profession, under which, up to and including the conclusion of the Agreement, use can only be made of one or more techniques for long-distance communication within the context of the auction system for long distance services maintained by Oriental Art Auctions. in case of the above, the following shall apply.
14.2 During the duration of 7 working days to be calculated from the day upon which the Agreement is concluded, the Consignor/natural person is entitled to cancel the Agreement free of charge and without giving reasons. Under certain circumstances the period can be extended to three months subsequent to the conclusion of the agreement. Any such termination must occur in writing (per e-mail or written letter).
14.3 The Consignor/natural person cannot assert the abovementioned right. in the event that with his/her consent Oriental Art Auctions has commenced performance of the Agreement prior to the expiry of the term mentioned above.
14.4 In deviation from the provisions set out in Article 7:46101 the Dutch Civil Code pertaining to an occurrence of default, the statutory provisions set out in Articles 6:81-83 01 the Dutch Civil Code shall apply instead.
15.1 Nullification, annulment or the non-bindingness of one of the provisions set out in the present Agreement containing General Conditions 01 Business shall not affect the validity of the remaining provisions. In the event that one or more provisions is null and void, annulled or nonbinding, Consigner and Oriental Art Auctions shall agree one or more provisions to replace the above which are valid and which correspond as far as possible in content and purport to the provisions that are null and void, annulled or nonbinding.
15.2 Objects which, even without prior knowledge of the owner, are deemed to be cultural heritage, and objects which are made with materials which do not have the necessary CITES certificate, (Ivory, Coral, Rhinoceros horn etc.) are excluded from our Auctions. This also counts for objects which may be considered plundered artworks by the authorities. Possible confiscations and legal consequences are the sole responsibility and expense of the consignor.
15.3 The present Conditions of Business are governed exclusively by the Laws of the Netherlands.
15.4 All disputes pertaining to, arising from or in connection with any agreement entered into between Oriental Art Auctions and the Consignor or in connection with the formation of any such agreement shall be submitted to the exclusive jurisdiction of the competent court in Zwolle, except for the right of Oriental Art Auctions to choose to have the dispute adjudicated by the competent court located in the district of the Consignor.